Online Library of Liberty

George H. Smith, “The System of Liberty” (September 2013)

This is a discussion of George H. Smith’s new book The System of Liberty: Themes in the History of Classical Liberalism published by Cambridge University Press (2013). Smith describes how he came to write the book, the works of the history of political thought which inspired him (in particular the writings of the German legal historian Otto von Gierke), and the methodology he uses in approaching the history of ideas (Locke’s idea of “the presumption of coherence”). He demonstrates his approach with a brief discussion of one of the key ideas he has identified in the history of classical liberal thought, namley, the idea of “inalienable rights,” or to phrase it in the terminology of 17th century natural rights philosophers like Pufendorf, the distinction between “perfect and imperfect rights.” His essay is discussed by Jason Brennan, assistant professor of strategy, economics, ethics, and public policy at Georgetown University; David Gordon, Senior Fellow at the Ludwig von Mises Institute; and Ralph Raico, Professor Emeritus of History at the Buffalo State College.

"LIBERTY MATTERS"

A FORUM FOR THE DISCUSSION OF MATTERS PERTAINING TO LIBERTY

George H. Smith, "The System of Liberty" [September,
2013]

"Liberty Matters" Online

This online discussion is part of the series “Liberty Matters: A Forum
for the Discussion of Matters pertaining to Liberty.” EBook versions
of these discussions in PDF, ePub, and Kindle formats can be found at </title/2516>.

This discussion can be found in EBook formats at </title/????>.
It will be posted at the end of the month.

Copyright & Fair Use Statement

"Liberty Matters" is the copyright of Liberty Fund, Inc. This
material is put online to further the educational goals of Liberty Fund,
Inc. These essays and responses may be quoted and otherwise used under "fair
use" provisions for educational and academic purposes. To reprint these
essays in course booklets requires the prior permission of Liberty Fund,
Inc. Please contact the OLL Editor
if you have any questions.

The Debate

Summary:

This is a discussion of George H. Smith's new book The System of Liberty:
Themes in the History of Classical Liberalism published by Cambridge
University Press (2013). Smith describes how he came to write the book,
the works of the history of political thought which inspired him (in particular
the writings of the German legal historian Otto von Gierke), and the methodology
he uses in approaching the history of ideas (Locke's idea of "the
presumption of coherence"). He demonstrates his approach with a brief
discussion of one of the key ideas he has identified in the history of
classical liberal thought, namley, the idea of "inalienable rights," or
to phrase it in the terminology of 17th century natural rights philosophers
like Pufendorf, the distinction between "perfect and imperfect rights." His
essay is discussed by Jason Brennan, assistant professor of strategy, economics,
ethics, and public policy at Georgetown University; David Gordon, Senior
Fellow at the Ludwig von Mises Institute; and Ralph Raico, Professor Emeritus
of History at the Buffalo State College.

Lead Essay: George H. Smith, "The System of
Liberty" [September, 2013]

About the Authors

George H. Smith is an independent scholar and a weekly columnist at the Cato
Institute’s Libertarianism.org. He is the author of Atheism: The
Case Against God (1974), Atheism, Ayn Rand, and Other Heresies (1991),Why
Atheism (2000). He is also the author of the audio series on “Great
Political Thinkers,” “The Meaning of the Constitution,” and “The
Ideas of Liberty.” He has articles and book reviews published in the New
York Times, Newsday, Reason, Liberty, The
Journal of Libertarian Studies, Free Inquiry, and The Humanist.

Jason Brennan is assistant professor of strategy, economics, ethics, and public
policy at Georgetown University. He is the author of Compulsory Voting:
For and Against, with Lisa Hill (forthcoming from Cambridge University Press);
Libertarianism: What Everyone Needs to Know (Oxford University Press, 2012);
The Ethics of Voting (Princeton University Press, 2012); and, with David Schmidtz,
A Brief History of Liberty. He is currently writing Against Politics for Princeton
University Press as well as Why Not Capitalism? and, with Peter Jaworski, Markets
without Limits for Routledge Press. He has published in Philosophy
and Phenomenological Research, Philosophical Quarterly, The
Australasian Journal of Philosophy,
and Social Philosophy and Policy. He blogs (sometimes) at Bleeding Heart Libertarians <http://bleedingheartlibertarians.com/>.

David Gordon is Senior Fellow at the Ludwig von Mises Institute. He received
his Ph.D. in History from UCLA in 1975. He is the author of Resurrecting
Marx, An Introduction to Economic Reasoning, and The Essential Rothbard. He is the
Editor of the Mises Review and a member of the senior faculty of the Mises
Institute. He has contributed to Analysis, Mind, Ethics, Quarterly
Journal of Austrian Economics, Journal of Libertarian Studies, and other journals.

Ralph Raico is a retired professor of European
history at Buffalo State College. He studied in Chicago with F. A. Hayek, where
he received his Ph. D., and in New York with Ludwig von Mises, whose book Liberalismus he
translated into English. Raico is the author of two collections of essays, Classical
Liberalism and the AustrianSchool and Great Wars and Great
Leaders, a revisionist work. His history of German liberalism was translated
into German by Joerg Guido Huelsmann. Raico has lectured widely on classical
liberalism in the U. S., Canada, and Europe.

Additional Reading

LEAD ESSAY: George H. Smith, "The
System of Liberty" [September, 2013]

The System of Liberty: Themes in the History of Classical Liberalism[1] was
written, on and off, over a period of nearly 15 years. I originally had in
mind a longer, more ambitious book of which System would have comprised
only a third, but reality finally persuaded me -- “compelled” might
be a better word -- to divide the project into smaller segments along the lines
of F.A. Hayek’s Law, Legislation, and Liberty. The working titles
of the other two parts of my trilogy, should I ever be able to finish them,
are The Disciplines of Liberty and Sovereign State, Sovereign
Self.

Every account of history has a history of its own. This consists of biographical
details – personal factors that caused historians to become interested
in their subject matter and that shaped their perspective. Whether or not such
personal details are relevant to understanding a particular text will vary from
case to case, but when considering a history of controversial ideas, as we find
in accounts of religious and political thought, some biographical knowledge of
the historian may help us to understand his or her text.

As I reread The System of Liberty while preparing to write this essay,
I was struck by how my basic perspective on the history of modern political
thought was formed many years ago. In 1969, while a student at the University
of Arizona, I visited my favorite used bookstore in Tucson and found, side
by side, copies of two books by the great German scholar Otto Gierke. One was
a paperback edition of Political Theories of the Middle Ages.[2] The
other was a hardcover version of Natural Law and the Theory of Society,
1500-1800.[3]

Both books,
which were taken from Gierke’s three-volume work, Das deutsche
Genossenschaftsrecht (The German Law of Association, 1881),
were tough going for an undergraduate whose knowledge of the history of political
theory had come mainly from superficial survey courses. I had never heard of
Gierke before, but as I thumbed through the volumes for around 20 minutes,
I was intrigued by his generalizations. Although the paperback was only a
dollar, the Cambridge hardcover was ten dollars, which was more than I had
ever paid for a used book. But having gotten paid the day before from my
job at an auto supply store, and with two weeks of minimum wage income weighing
me down, I decided to purchase both volumes. That decision would significantly
influence my
subsequent intellectual development – an influence that is reflected
in The
System of Liberty.

I still possess both volumes, and after 44 years it is instructive to see
the passages that I bracketed for future reference. For example, in Political
Theories of the Middle Ages (p. 87), Gierke, referring to the transition
from medieval to modern political thought, wrote:

The Sovereignty of the State and the Sovereignty of the Individual were steadily
on their way towards becoming the two central axioms from which all theories
of social structure would proceed, and whose relationship to each other would
be the focus of all theoretical controversy.

Gierke’s contrast between state and individual sovereignty is reflected
in various places in my book, most conspicuously in the title of Chapter 4, “Sovereign
State, Sovereign Self.” Although it is possible to trace features of
individualism to the ancient and medieval worlds, I maintain in System that
the political individualism of classical liberalism is a distinctively modern
phenomenon, one that did not coalesce into a coherent political philosophy
until the early 17th century. This development was facilitated, perhaps necessitated,
by the rise of the absolute nation-state and, more specifically, by philosophical
defenses of absolutism that became prominent in the 16th century. Such defenses
of state sovereignty – as found, most famously, in the writings of Jean
Bodin – were
expressed in the language of rights, or enforceable moral claims. These rights
were merely the flip side of the obligations that subjects owed to their sovereign.
Bodin even discussed “inalienable”rights when considering which
rights a political sovereign could never transfer or renounce.

Faced with this arsenal of arguments for state sovereignty, opponents of absolutism
typically framed their criticisms in terms of individual sovereignty – a
concept that went by various labels, such as property in one’s person,
self-propriety, self-proprietorship, and, later, self-ownership and self-sovereignty.

Here, from Natural Law and the Theory of Society (p. 96), is another
passage that I marked decades ago:

[T]he guiding threat of all speculation in the area of Natural Law was always,
from first to last, individualism steadily carried to its logical conclusions.
Every attempt to oppose this tendency was necessarily a revolt, on this point
or on that, against the idea of Natural Law itself….The fixed first
principle of the natural-law theory of society continued to be the priority
of the Individual to the Group.

Gierke was not favorably disposed to the individualism of natural-law theories.
He believed that the modern demotion of medieval corporations to a secondary
status, one that placed them under the jurisdiction of a sovereign state, promoted
absolutism by leaving no protective buffers between the state and the individual.
The natural-law tradition recognized no group personalities; only individual
human beings could claim moral autonomy. Thus, for natural-law liberals, the
natural rights of individuals became the moral foundation of civil society – and
this approach, in turn, generated the need for a fictitious social contract
(in some form) to justify political authority through a process of consent.
Thereafter the major currents in political thought became a struggle between
the sovereignty of the state and the sovereignty of the individual.

The following is another passage from Natural Law and the Theory of Society (p.
113) that I not only bracketed but further emphasized by writing “NB” in
the margin.

[T]he theory of the Rights of Man grew into a great and spreading tree.
The supposition that individuals, on their entry into civil society, were
only willing to surrender the smallest possible part of their freedom, was
now associated with the doctrine that certain of the original rights of the
individual were inalienable and intransferable, and could not, therefore,
be effectively surrendered, even by an express act of contract. In this way
a distinction came to be drawn between inherent and acquired rights. Acquired
rights, it was argued, were subject to the system of positive law, which
depended on the existence of the State; but inherent rights were based on
the pre-social Law of Nature, and since that law was still valid to protect
them, they were immune from
any invasion by legislative action.

Although parts of Gierke’s summary are misleading, such as his depiction
of “inherent rights” as pre-social rather than as pre-political,
it was after reading this passage that I came to appreciate the theoretical
significance of inalienable rights in the tradition of liberal individualism.
For natural-law liberals, inalienable rights were inextricably linked to man’s
moral agency, so they could not be transferred, abandoned, or otherwise alienated,
even with the consent of the rights-bearer. A person could no more transfer
his inalienable rights than he could transfer his powers of reason and volition.

As I argue in Chapter 6, “The Radical Edge of Liberalism,” the
doctrine of inalienable rights played a crucial role in the Radical Whig theory
of revolution. The hypothetical construct of a social contract was unable to
specify with precision which alienable rights had supposedly been
delegated to government, so this was regarded as a legitimate topic of debate.
But inalienable rights
were a different matter altogether. Since they were incapable of transfer,
no government could legitimately claim jurisdiction over them by appealing
to a social contract or to a theory of implied consent. Consequently, a government
that repeatedly violated inalienable rights qualified as tyrannical and became
theoretically ripe for revolution.

In “The Radical Edge of Liberalism,” I use this analysis to explore
the old controversy about why Thomas Jefferson did not include “property” in
his list of “unalienable” rights in the Declaration of Independence.
Aside from the fact (one often overlooked) that Jefferson wrote “among
these” when referring to the inalienable rights of life, liberty, and the
pursuit of happiness – thereby indicating that his list was not exhaustive – I
point out that to have mentioned “property” as an inalienable right
would have proved confusing to eighteenth-century readers. At that time “property” could
refer to the moral power of dominion over one’s body, labor, actions, conscience,
and so forth; or it could refer to external objects. In the former sense, “property” was
regarded as an inalienable right, but this was not true of “property” in
the narrow, more modern sense of the term. We can obviously alienate our external
property by transferring ownership to other people. Indeed, Lockeans commonly
argued that a social contract entails an agreement to transfer some of our property,
collected as taxes, which governments need to function. Thus for Jefferson to
have included property in his partial list of inalienable rights would have been
highly ambiguous, at best.

Lastly, I employ the notion of inalienable rights in The System of Liberty to
call attention to an essential difference between theories of liberal utilitarianism
and natural rights. Although the liberal theory of natural rights has been
characterized as a type of rule utilitarianism, this overlooks the function
of inalienable rights in that tradition. Inalienable rights, such as “liberty of conscience,” were
immune to calculations of public utility, the general good, the common good,
etc. Inalienable rights, unlike alienable rights, were viewed as absolute.

Having discussed some aspects of my approach to the history of modern political
philosophy, as presented in The System of Liberty, I shall now summarize
some of my thoughts about methodology, and I shall conclude with a topic that,
in my judgment, merits further investigation by historians of classical liberalism.
I have chosen the following topics in the hope that they will stimulate discussion.

1) Although, as I state in the introduction, my book “is not a history
of classical liberalism per se,” its historical perspective raises the
same problems of methodology that we encounter in any history of ideas. I have
an enduring interest in the philosophy of history and have accumulated a mini-library
of books on that topic alone,[4] but
I am skeptical whether technical discussions of meaning, intention, and related
matters are of much value to working historians, however interesting they may
be to philosophers. Although the modern stress on context, such as we find
in the methodological writings of Quentin Skinner, J.G.A. Pocock, and other
historians associated with the Cambridge School,[5] is
valuable, I don’t think there is much that is essentially new
in that approach.[6]

2) So far as the interpretation of texts is concerned, I’m surprised that
more attention has not been paid to John Locke’s discussion in An
Essay for the Understanding of St. Paul’s Epistles, published posthumously
in 1707.[7] Concerned with the
tendency of laypersons to rely upon the interpretations of supposed biblical
authorities (who often contradicted one another), Locke proposed some commonsensical
rules for understanding texts, which may be summarized as follows:

Locke points out that we naturally tend to interpret a passage through our
own understanding of words, even when those words meant something different
to an author from a different era and culture. To overcome this obstacle we
should read through a given section or chapter as if it were a self-contained
unit – seeking
thereby to understand the central theme of that unit, or if it contains additional
themes, to ascertain how they are connected, if at all. We should seek, in other
words, a general view of the writer's “main purpose in writing,” as
well as his fundamental arguments in which that purpose is fulfilled. This will
give us a sense of “the
disposition of the whole.” One or two hasty
readings is insufficient, according to Locke, especially when a text proves difficult
to understand. The reading “must be repeated again and again, with close
attention to the tenor of the discussion.”

It is best to assume that a given section “has but one business and
one aim, until, by a frequent perusal of it, you are forced to see that there
are independent matters in it.” When seeking the meaning of “obscure
and abstruse” passages, we need to recall the overall purpose and
context of the writer. It helps to know the particular circumstances and intended
audience of the writer. If we cannot discern these, then we must use the text
itself as a tool of interpretation. We should assume that the writer was coherent
and informed, and we should interpret him in a manner that is consistent with
this assumption. We should interpret a text with a view to the writer’s “character,” which
we come to know from “diligent examination.” We should look for “coherence
of discourse, tending with close, strong reasoning to a point.”[8]

Locke thus proposes what we may call a presumption of coherence.
We should presume that the author had a full and comprehensive grasp of his
subject and, moreover, that he had a reason for expressing his arguments in
a certain manner. These assumptions, though defeasible, will lead us to an
interpretation that is more likely to be correct than any other. Or, at the very least,
this procedure will enable us to eliminate some of the more improbable interpretations
as inconsistent with the overall tenor of the text. Having studied how a writer
argues – and, by implication, how he thinks – we will be able “to
pronounce with confidence, in several cases, that he could not talk this or
that [way].”

I first read Locke’s discussion around 1977, and I found it more useful
for practical purposes than volumes of modern, hyper-technical discussions
about the historical interpretation of texts.

3) A topic that I discuss briefly in The System of Liberty is the
distinction between “perfect” and “imperfect’ rights
and obligations. This is, in effect, an early version of the crucial distinction
that later libertarian writers, such as Lysander Spooner, made between crimes
and vices, so I think the topic deserves more attention than I was able to
give it.

Although Hugo Grotius, writing in 1625, distinguished between perfect and
imperfect rights, linking the former to “Justice
properly and strictly taken,”[9] the
definitive formulation, so far as later writers on natural law were concerned,
was that given by Samuel Pufendorf in The Law of Nature and Nations (1672).

It should be observed … that some things are due us by a perfect,
others by an imperfect right. When what is due us on the former score is
not voluntarily given, it is the right of those in enjoyment of natural liberty
to resort to violence and war in forcing another to furnish it, or, if we
live within the same state, an action against him at law is allowed; but
what is due on the latter score cannot be claimed by war or extorted by a
threat of the law.[10]

The dichotomy between moral obligations that may be coercively enforced and
obligations that must rely on voluntary compliance became standard fare in
the literature on natural law and natural rights. As I discuss in my book,
Adam Smith mentioned it during his Glasgow lectures
on jurisprudence (1762-63),
and it is reflected in his discussion
of justice in The Theory of Moral Sentiments. [11]

I cannot say when this usage fell into disfavor, but I know of one criticism
from the late 18th century. In The Principles of Moral Philosophy Investigated,
Thomas Gisborne criticized “the injudicious practice of moralists, in
dividing rights into two kinds, which they have termed perfect and imperfect.”

This division I have rejected, as being radically indefensible and groundless,
and a source of continual and important errors. Under the title perfect,
all rights whatever were in fact comprehended. Those denominated imperfect,
were not rights, according to any consistent definition of that term. If
I were told by a moral philosopher, that a person in distress had a right
to my charity, I should admit that he might have good reasons for presuming
that I should relieve him; because he might reasonably expect that I should
cheerfully employ the gifts which God had bestowed upon me, in a manner so
conformable to the will of the donor: but I should deny that he had a right to
that assistance from me which my Creator gave me authority to confer or to
withhold at my discretion; and authority for the due exercise of which I
am answerable to him alone.[12]

I have mentioned only a few of the intellectual currents that run through The
System of Liberty: Themes in the History of Classical Liberalism. The
book covers a good deal more, such as “the presumption of liberty,” so
I hope my commentators will feel free to discuss anything that interests them.

Endnotes

[1] The
System of Liberty: Themes in the History of Classical Liberalism (Cambridge,
U.K.: Cambridge University Press, 2013).

[2] Otto
Gierke, Political
Theories of the Middle Ages, trans. Frederic William Maitland (Boston:
Beacon Press, 1958). [A PDF version of the 1900 edition is available
online at the OLL: Otto von Gierke, Political Theories of the Middle
Ages, translated with an Introduction by Frederic William Maitland (Cambridge:
Cambridge University Press, 1900). </title/2562>.]

[4] My favorite book on the
philosophy of history is by the medieval historian Gordon Leff: History
and Social Theory (Tuscaloosa, Ala.: University of Alabama, 1969).
Also excellent is the neglected treatment by the Catholic intellectual
historian James Collins: Interpreting Modern Philosophy (Princeton,
N. J.: Princeton, 1972).

[5] For a collection of Skinner’s
writings on methodology, see Visions of Politics, Volume 1: Regarding
Method (New York: Cambridge, 2002). For some criticisms of Skinner
(and his reply), see Meaning and Context: Quentin Skinner and His Critics,
ed. James Tully (Princeton, N.J.: Princeton, 1988). The article by Kenneth
Minogue (176 ff.) is especially good. For Pocock’s views, see Political
Thought and History: Essays on Theory and Method (New York: Cambridge,
2009).

[6] See, for example, the
remarks on method by C.E. Vaughan in chapter 1 of his two-volume work, Studies
in the History of Political Philosophy: Before and After Rousseau (Manchester,
U.K.: University of Manchester Press, 1925). Cf. the Introduction in J.W.
Allen, A History of Political Thought in the Sixteenth Century (London:
Methuen, 1928). Also worthwhile is the earlier discussion by Sir Leslie
Stephen in History of English Thought in the Eighteenth Century,
3d ed. (New York & Burlingame, Cal.: Harbinger Books, 1962), I: 1-16.
This classic work, which remains unsurpassed in some respects, was first
published in 1876.

[7] All
quotations are from The
Works of John Locke, 12th ed., vol. 7 (C. and J. Rivington: London,
1824). ["An Essay For the Understanding of St. Paul’s Epistles,
By Consulting St. Paul Himself" (1707) </title/1556/81024>.]

[8] Editor:
the full passage is: "Whether a superficial reading, accompanied with
the common opinion of his invincible obscurity, has kept off some from
seeking in him, the coherence of a discourse, tending with close, strong
reasoning to a point; or a seemingly more honourable opinion of one that
had been rapped up into the third heaven, as if from a man so warmed and
illuminated as he had been, nothing could be expected but flashes of light,
and raptures of zeal, hindered others to look for a train of reasoning,
proceeding on regular and cogent argumentation, from a man raised above
the ordinary pitch of humanity, to a higher and brighter way of illumination;
or else, whether others were loth to beat their heads about the tenour
and coherence in St. Paul’s discourses; which, if found out, possibly
might set them at a manifest and irreconcileable difference with their
systems: it is certain that, whatever hath been the cause, this way of
getting the true sense of St. Paul’s epistles, seems not to have
been much made use of, or at least so thoroughly pursued, as I am apt to
think it deserves." Locke, "An Essay For the Understanding of St.
Paul’s Epistles, By Consulting St. Paul Himself" (1707) </title/1556/81024/1927033>.

[10] Samuel Pufendorf, On
the Law of Nature and Nations, trans. C. H. Oldfather and W.A. Oldfather
(London: Oxford at the Clarendon Press, 1934), 118. See also the discussion
at 315.

[11] Editor:
The passages Smith quotes in System of Liberty are from pp. 60-61
and are reproduced here. From Lectures On Jurisprudence: "Perfect
rights are those which we have a title to demand and if refused to compel
an other to perform. What they call imperfect rights are those which correspond
to those duties which ought to be performed to us by others but which
we have no title to compel them to perform; they having it intirely in
their power to perform them or not. Thus a man of bright parts or remarkable
learning is deserving of praise, but we have no power to compel any one
to give it him. A beggar is an object of our charity and may be said to
have a right to demand it; but when we use the word right in this way it
is not in a proper but a metaphoricall sense." </title/196/55587/919834>.
From Theory of Moral Sentiments: "Society may subsist, though
not in the most comfortable state, without beneficence; but the prevalence
of injustice must utterly destroy it. Though Nature, therefore, exhorts
mankind to acts of beneficence, by the pleasing consciousness of deserved
reward, she has not thought it necessary to guard and enforce the practice
of it by the terrors of merited punishment in case it should be neglected.
It is the ornament which embellishes, not the foundation which supports
the building, and which it was, therefore, sufficient to recommend, but
by no means necessary to impose. Justice, on the contrary, is the main
pillar that upholds the whole edifice. If it is removed, the great, the
immense fabric of human society, that fabric which to raise and support
seems in this world, if I may say so, to have been the peculiar and darling
care of Nature, must in a moment crumble into atoms." </title/192/200110/3301454>.

1. Jason Brennan, "The
Idea of Freedom: Little Is at Stake" [Posted: September 6, 2013]

In this short response, I’m going to focus on the issue of how two different
thinkers—Thomas Hobbes and John Locke—defined “liberty,” and what is and is not at
stake in their definitions. Hobbes and Locke would have thought that their
different definitions of liberty have different implications about what governments
ought and ought not do, but I think they’re mistaken.

Classical liberals are liberals. What is supposed to make liberal doctrines
distinctive is that it gives freedom some special, privileged, or fundamental
place. But, as Smith notes (134) this presents a few problems.

First, there is a lot of disagreement about just what “freedom” or “liberty”
signify, and also what it takes to secure freedom, so defined. Isaiah Berlin
claims to have identified 200 different concepts of freedom, though Berlin
doesn't tell us what these 200 different concepts are, and Smith is rightly
skeptical that Berlin found quite that many. (134) Even non-liberals or anti-liberals
claim to be for rather than against freedom. Marxists and
fascists both say their preferred systems deliver a better kind of freedom
or do a better job delivering freedom than liberal capitalism does.[13]

Second, “liberty” and “freedom” are often defined in terms of other moral
concepts, such as rights, property, and coercion.
(These terms are often in turn defined in terms of freedom, leading to problems
of circularity.) So, while a typical libertarian will say that he advocates
the free market because she opposes coercion, a typical Marxist will responds
that she rejects the free market because she opposes coercion. Here, the two
disagree about what counts as coercive.

Smith says that debates about the “‘true’ meaning of freedom are usually futile,”
because “nominal definitions are determined by linguistic conventions, not
by philosophers, and the conventional meanings of ‘freedom’ are significantly
diverse to support a wide variety of interpretations.” (135) So, for instance,
one cannot just pound the table and insist that “freedom” just means libertarian
negative liberty—that won’t reflect the common usage of the word in English
and it will just come across as ideological special pleading.[14]

Smith proposes instead (in chapter 7, “The Idea of Freedom”) to dispense with
the futile debate about what the “true” meaning of “freedom” or “liberty” is,
and instead to just examine how classical liberals thought of the concepts,
as the concepts were embedded in the context of classical-liberal ideology.

Smith notes that in conventional English, the words “liberty” and “freedom”
appear to be used to refer to variety of related but not identical things.
My view is that “freedom” and “liberty” are not in the first instance philosophical concepts,
unlike, say, “epistemic justification” or “social contract.” Instead, these
are conventional concepts in natural language, though they are concepts that
philosophers appropriately take great interest in. Thus, there is a default
presumption that philosophers should yield to common usage when discussing
what “liberty” really means. (The same goes for, say, the word “fish,” which
is a pre-scientific term, but not the word “mammal,” which is a scientific
term.[[15] In contrast, there is a default presumption that laypeople should
yield to philosophers’ usage when discussing what “epistemic justification”
means. These presumptions can be defeated, of course. So, for instance, if
the common usage of “liberty” turned out to be radically confused or incoherent,
then philosophers have grounds for revising the language, if they can.

Very little is at stake ideologically in how we define our terms. For any
plausible definition of “liberty,” it will be an open question—a question not
settled by definition—whether that kind of liberty is valuable, whether we
have a right (of some sort) to that kind of liberty so defined, whether and
how that liberty ought to be protected or promoted, and so on. In short, the
real debate between, say, Marxists and classical liberals is not over the best
understanding of the word “liberty,” but is about something else.[16]

Smith says classical liberals often adopt “negative” conceptions of liberty.
A “negative” conception of liberty defined liberty in terms of the absence
of something. Smith notes that while Thomas Hobbes and Locke both had negative
conceptions of liberty, these conceptions were different in kind. Hobbes’s
conception is “mechanistic” while Locke’s is “social” (136). Hobbes says that
literally any physical obstacles to achieving your goals count as impediments
to your liberty, while Locke reserves the word “liberty” to refer to the absence
of rights violations (in one’s property). So, for Hobbes, if a tree falls and
pins you down, this is just as much an impediment to your freedom of movement
as when a thug pins you down. In contrast, Locke would say that the thug violates
your freedom, but he would not say (except in a loose sense) that the tree
impedes your liberty.

Smith says that these two ways of understanding liberty “can have profound
ideological implications….” (137) For absolutists like Hobbes and Filmer, it
would be absurd to say the purpose of laws is to promote liberty, because laws
always, in the first instance, create obstacles where there were none. Governments
primarily restrain liberty, and for good reason, according
to Filmer and Hobbes. In contrast, for Locke, when a government protects rights,
it thereby protects our freedom. For Hobbes, to stop a thief from mugging you
involves a loss of freedom for the thief, while to allow the thief to mug you
involves a loss of freedom for you. For Locke, only the latter counts as a
loss of freedom—since the thief has no right to your wallet, it doesn’t count
as a loss of freedom to stop him from mugging you. (139)

I think Smith’s exegesis is correct, and I think he’s right that Locke and
Hobbes would have seen their disagreement about the right way to define “liberty”
as in turn leading to different conclusions about politics. But I disagree
with Locke and Hobbes here over whether this difference in definition in fact
has any moral implications. Locke and Hobbes have deep disagreements,
but this disagreement is does not result logically from their disputes over
the best way to define “liberty.”

To see why, consider: I’m pretty much an anarchist classical liberal, yet I
also I pretty much accept the Hobbesian definition of negative liberty. In
my view, as in Hobbes’s, 1) a tree that falls on me is just as much an impediment
to my freedom as 2) a big thug pinning me down in order to mug me, which is
turn the same impediment to my freedom as when 3) a police officer pins me
down after I’ve mugged someone. However, while there is no metaphysical difference
among these cases—I'm equally unfree in all three—there are huge moral differences.
In the first case—a tree falls on me—I’m unfree, but this is just an unfortunate
fact of no moral significance. In the second case, I’m unfree, and wrongly
so. In the third case, I’m unfree, and rightly so. The situations
are the same in terms of freedom but not in terms of their moral portent.

I take issue with Locke’s definition of liberty, because it implies, as far
as I can tell, that people who are rightfully imprisoned haven’t lost any freedom.
After all, they ought to be in prison, and so their rights
aren’t be violated. Since their rights aren’t being violated, they aren’t unfree.
Yet, there they are, behind bars. That seems a bit weird. Isn’t it conceptually
cleaner just to say that justly convicted and imprisoned prisoners are not
free to leave, and rightly so?

Continuing with this point, I’d say that a classical-liberal government restrains
the freedom of government officials to do as they please—and rightly so!—while
an authoritarian government gives officials great freedom to do as they please—and
wrongly so! My right of free speech, when protected, comes at the expense of
others’ freedom to restrict my speech—and rightly so. Etc.

If we decide to use the Hobbesian definition of “liberty,” then the ideological
question isn’t so much what counts as a restriction of freedom, but what counts
as a good or bad, rightful or wrong restriction of freedom. Very little is
at stake in how we define our terms.

Smith says,

The mechanistic view [of liberty] was favored by absolutists … because it
supported their contention that all laws necessarily restrict
liberty. All governments enforce laws that restrain people from doing what
they might otherwise have a will to do – so it is absurd to claim, as did the
political individualists, that the primary purpose of government is to preserve
liberty. It is therefore nonsensical to reject absolutism for its supposed
incompatibility with freedom.

Again, I think Smith is right that the absolutists, Hobbes and Filmer, saw
things this way. But the absolutists are making an important mistake. I agree
with Hobbes and Filmer that, say, a law forbidding rape, if enforced properly,
stops would-be rapists from having the freedom to rape. But since people shouldn’t have
the freedom to rape, this is a good and just restraint
of liberty. In contrast, a government that stops people from, say, smoking
pot restrains liberty, but in this case, unjustly. I can just agree with Hobbes
that even a liberal polity restricts freedom, but then respond that it restricts wrongful freedoms
while allowing rightful freedoms. When Locke says that a
good government promotes freedom, we can easily translate this into Hobbesian
language by saying instead that a good government protects rightful freedoms
while restricting wrongful freedoms. So, again, nothing
is at stake in how we define our terms. The debate over what governments ought
and ought not to do is not settled by finding the right
definition of liberty.

Note that even on Hobbes’s own terms, the move to government from the Hobbesian
state of nature should be seen as an improvement in how much liberty we enjoy.
The state of nature is a war of all against all, Hobbes argues, in others continuously
interfere with us. The Leviathan imposes barriers and obstacles upon us, and
so in the first instance reduces our liberty, as Hobbes understands the concept.
But the result is that we are interfered with much less than we were in the
state of nature. So, overall, we gain rather than lose liberty. What’s more—and
here Hobbes agrees—the value of the liberty we enjoy under the Leviathan is
much higher than the value of our liberty in the state of nature. Now, Smith
and I both dispute whether anarchy really would be like the Hobbesian state
of nature, and of course neither Smith nor I accept Hobbes’s favored form of
government. My point here is just that even Hobbes’s argument for government
can be re-stated as the view that government exists to promote liberty, even
if Hobbes himself didn’t describe it that way.

In closing, I think there are three main questions about liberty:

What is it?

How much and what kind of value, if any, does
liberty have? (Do people have a right to certain kinds of liberty?)

What institutions and social conditions best
produce and protect the kinds of liberties worth having? (In particular,
what role should government have?)

The first question is the most basic. One cannot answer the other questions
without having good answer to the first. The third question (and the
second, to some degree) requires more than just the tools of philosophical
theorizing. To know what institutions best produce and protect liberty
requires social scientific investigation. It cannot be answered from
the armchair.

The right way to think about these questions is to answer them in order. But
I tend to find—and Smith notices something like this as well (133)—that most
people tend to theorize about these questions in the something like the reverse
order. People first begin with their ideology, whatever that is, and then reverse-engineer
a definition of “liberty” such that it comes out, fortuitously, that their
favored political regime is the only regime that promotes real liberty.
It’s bogus, regardless of whether a Rousseauian or a Randian is doing it.

Reading George Smith’s outstanding new book brought back a pleasant memory.
I first met George Smith in 1978 at the Acres of Books bookstore in Long Beach,
California, and, if memory serves, we spoke about one of George’s favorite authors,
the historian and sociologist J.M. Robertson. George’s vast learning very much
impressed me then, and it has continued to do so through the many years that
have elapsed since that first encounter, when we were both young.

George’s scholarship is abundantly evident in The System of Liberty.
Despite my reputation, to my mind an undeserved one, as a harsh reviewer, I
do not have any criticisms to offer of the book. Rather, I’d like to ask questions
about a few passages, in the hope that George will be able to cast further
light on these.

George quotes a puzzling remark from Locke: At any rate, it has puzzled me.
“The rightness of an action does not depend on its utility; on the contrary,
its utility is a result of its rightness.” (p.27. All subsequent references
to the book will be by page numbers in parentheses in the text.) George seems
to me entirely right in grouping Locke among the liberals who saw natural rights
and social utility as “perfectly compatible.” (p.27) What, though, is meant
by saying that the rightness of an action results in its utility?
How can the rightness of an action bring about, or cause, it to be useful?
If Locke just means that right actions tend to be useful, then Locke’s
meaning is clear. But saying that a right action is useful and saying that
the rightness of the action causes it to be useful are two different claims.
What exactly does Locke mean?

Thinking about this passage leads to a question of greater scope. A principal
theme of the book is a contrast between two sorts of classical liberal. Both
sorts thought that there was a general presumption in favor of laissez faire.
Interference with liberty, they all agreed, required justification: laissez
faire was the default position. The difference between the two groups
was that one of them forbade altogether interference with certain rights,
deemed inalienable. Considerations of social utility, those who held this
position maintained, could not trump these rights. The other group did not
exempt these rights, or anything else, from interference, if a case could
be made for it. “Those liberals who, like Jefferson, distinguished between
alienable and inalienable rights typically maintained that only alienable
rights should be regarded as defeasible presumptions. Under no circumstances
could a government violate inalienable rights,
so rights in this category were regarded as absolute.” (p.23, emphasis in original)

George’s contrast of the two sorts of liberalism leads to a question. He says:
“The difference consists mainly in this: Utilitarians justified rights solely
on the grounds of their social utility, whereas proponents of natural rights
considered social utility to be a consequence of observing moral principles
that are ultimately justified in terms of human nature--especially the role
of reason in judging which actions will enable a person to live a good life.”
(p.33, emphasis in original).

In sum, the supporters of natural rights argued in this way. “In order to
figure out how to lead a good life, we need to examine human nature. If we
do so, we will discover that people require a protected sphere of activity
in order to flourish. Living in a society that guarantees this sphere of activity
though rights that the government cannot violate will best promote human flourishing.”

Does this not raise a question? Are not people who argue in the way just described
themselves appealing to social utility? They are saying that it is best for
everybody if natural rights are respected. If rights are respected, this will
result in an increase in social utility.[17] If so, it would seem that we have
here an intramural quarrel among utilitarians. One group asserts, and the other
denies, that the proper way to promote social utility is to respect rights.
Are there considerations to which the natural rights liberals appeal that are
independent of human flourishing, and if so what are they?

Certainly there have been professed utilitarians who endorsed natural rights.
Herbert Spencer, about whom George has, both in The System of Liberty and
elsewhere, written illuminatingly, was one such. This raises all the more pointedly
the need to set forward exactly how a natural rights view differs from a utilitarian
one, if indeed it does.

Further, I think another position should be noted. A classical liberal could
defend complete laissez faire, or close to it at any rate, without
appeal to rights. Mises defended this position. He argued that the free market
is the only viable social system. Interferences with it will fail to achieve
the goals their supporters favor; and, if continued and extended, lead to socialism,
a system doomed to calculational chaos.

As will by now be evident, the topic of rights is central to George’s book.
Reading George’s account of rights leads me to one more question. George writes:
“Whatever the origin of individual rights may be, the general notion of a political
right to compel obedience is implicit in the notion of political obligation.
To ponder our duty to obey a political authority is also to ponder the right of
that authority to compel obedience. Whether this authority was historically
conceived as secular or religious is irrelevant to this point, as is the specific
language that was used to express this right. So long as political philosophers
were concerned with the justification of political obligation, they were also
concerned with the justification of political rights.” (p.68, emphasis in original)

I do not doubt that George is here perfectly correct. If I am obligated to
obey someone, this obligation can be rephrased as someone’s right to compel
me to obey. The question I wish to raise is whether the principal defenders
of a duty to obey the state did in fact speak in this connection of the right
of the state to compel obedience. They could have, but did they? Would, e.g.,
defenders of absolutism have said something like this: “You are required to
obey the king, because if you don’t, you would be violating the king’s rights”?

That is a very broad question, so let us narrow it down. In his discussion
of sovereignty, George rightly draws attention to Jean Bodin. “Sovereign power,
according to Bodin, is ‘absolute and perpetual’; a sovereign authority is not
limited in power, in function, or in length of time. This stress on the absolute
nature of sovereign power is what links Bodin and others in his school to the
political approach called ‘absolutism.’”(p.77) Did Bodin speak of the sovereign’s right to
compel obedience? I do not mean in asking this to suggest that he didn’t.
It has been many years since I read him, and I fear that I do not recall. But
I think it is an important question whether the language of rights was explicitly
used about the sovereign.

In his discussion of sovereignty, George valuably draws attention to an argument
deployed by Bodin and by Marsilus of Padua before him. According to this argument,
there must be a single final source of authority to resolve conflicts in a
society. Marsilus imagines a situation in which there are several competing
governments in a territory. Each government might at the same time summon a
person to appear before its respective court, but the person summoned, unable
to be in two places at the same time, “would be held in contempt by at least
one ruler for failing to fulfill a moral and legal obligation that no one could
possibly fulfill.” (p.79)

It is worth pointing out that this argument does not on its own terms succeed
in showing the need for a single sovereign. Suppose someone faces conflicting
legal obligations of the kind described. For each such instance, there must
be an authority to resolve the conflict. Otherwise, the person will be unable
to fulfill at least one obligation. It does not follow from this, though, that
the same authority must resolve all such disputes. From “For each conflicting
obligation, there must be an authority to determine which (if any) is binding”
it does not follow that “There must be in a society be a single authority to
resolve all disputes about obligations.” The fallacy is the same as that involved
from going from “Every person has a father” to “Someone is everyone’s father.”

The System of Liberty is a major contribution to the understanding
the classical liberal tradition, and I highly recommend it. The chapter “The
Anarchy Game” is particularly important.

Endnote

[17] Note,
to revert to my previous question, that to claim that observing people’s rights
will promote social utility is not to claim that the rightness of doing so
brings about an increase in utility.

3. Ralph Raico, "Why Only in
the West?"
[Posted: September 11, 2013]

My good friend George Smith is, in all likelihood, the premier scholar of
freethought of the present day, besides being an excellent historian of modern
political thought in general. His new book will doubtless be an important
contribution to the history and philosophy of classical liberalism.

I wonder, though, whether George has ever considered why liberalism and the
idea of freedom originated in the West and not in other great civilizations,
such as China, India, and Islam. Ludwig von Mises noted the fact that liberalism
is quintessentially Western, but, again, did not explain why. In fact, in Europe
even classical antiquity lacked the idea of individual freedom. For the Greeks,
the polis was the center of their existence. The Romans worshipped
their city; Roma was a goddess, with temples and priests to serve
her.

What made the difference in the West was the introduction of a powerful new
factor: Christianity.

Christian contributions include the mitigation of slavery and a greater equality
between parents within the family. But the crucial political impact
of Christianity emerged with the critique of state-worship of the early Church
Fathers, particularly St. Augustine, who contrasted the City of God to the
City of Man, giving unquestionable priority to the first. Karl Ferdinand Werner,
in (Baechler, Hall, and Mann, eds. Europe and the Rise of Capitalism, 1988)
pointed out that St. Augustine and other Christian writers had desacralized the
state and thus radically altered the conception prevalent in Greco-Roman antiquity.

When Christ said: “Render
unto Caesar the things that are Caesar’s, and
unto God the things that are God’s,” those words, spoken on His last visit
to the Temple, three days before His death, gave to the civil power, under
the protection of conscience, a sacredness it had never enjoyed, and bounds
it had never acknowledged; and they were the repudiation of absolutism and
the inauguration of freedom. [From "The History of Freedom in Antiquity".]

A Roman Catholic, Acton explains how Jesus provided, in addition to the idea,
the practical means for its achievement:

For our Lord
not only delivered the precept, but created the force to execute
it. To maintain the necessary immunity in one supreme sphere, to reduce all
political authority within defined limits, ceased to be an aspiration of
patient reasoners, and was made the perpetual charge and care of the most
energetic institution and the most universal association in the world.
The new law, the new spirit, the new authority, gave to liberty a meaning
and a value it had not possessed in the philosophy or in the constitution
of Greece or Rome before the knowledge of the truth that makes us free.
[From "The History of Freedom in Antiquity".]

Acton records the results of the medieval struggle between the Catholic Church
and the state:

To that conflict
of four hundred years we owe the rise of civil liberty….
[A]lthough liberty was not the end for which they strove, it was the means
by which the temporal and the spiritual power called the nations to their
aid. The towns of Italy and Germany won their franchises, France got her
States-General, and England her Parliament out of the alternate phases
of the contest; and as long as it lasted it prevented the rise of divine
right. [From "The History of Freedom in Christianity."]

In recent years, Acton’s conclusions have come to be supported by a large
body of scholarship. Harold J. Berman, in his essay, “The Influence of Christianity
on the Development of Western Law” (1974) and his work, Law and Revolution:
The Transformation of the Western Legal Tradition (1983),has stressed
that with the fall of Rome and the eventual conversion of the Germans, Slavs,
Magyars, and other peoples, Christian ideas and values suffused the whole
blossoming culture of Europe. Importantly, such Christian ideas included
the concept of natural law, including the legitimacy of resistance to unjust
rulers.

Berman, like Acton, focuses attention on a critical development that began
in the 11th century: the creation by Pope Gregory VII and his successors of
a “corporate, hierarchical church … independent of emperors, kings, and feudal
lords,” [p. 56] and thus capable of foiling the power-seeking of temporal authority. In
this way, he bolsters Acton’s analysis of the central role of the Catholic
church in generating Western liberty by forestalling any concentration of power
in the secular rulers such as marked the other great cultures.

Berman’s work is in the tradition of the learned English scholar, A. J. Carlyle,
who, at the conclusion of his six-volume study of political thought in the
Middle Ages, A History of Medieval Political Theory: Political Theory from 1300
to 1600 (1950), summarized the basic principles of medieval politics:
that all--including the king--are bound by law; that a lawless ruler is not
a legitimate king, but a tyrant; that where there is no justice there is
no commonwealth; and that a contract exists between the ruler and his subjects.

Other recent scholarship has supported these conclusions. In his last, posthumous
work (Religious Thought and Economic Society, 1978), the distinguished
historian of economic thought, Jacob Viner, noted that the references to taxation
by St. Thomas Aquinas “treat it as a more or less extraordinary act of a ruler
which is as likely as not to be morally illicit.” Viner pointed also to the
medieval papal bull, In Coena Domini--evidently republished each year
into the late eighteenth century--which threatened to excommunicate any ruler
“who levied new taxes or increased old ones, except for cases supported by
law, or by an express permission from the pope.”

Throughout the Western world, the Middle Ages gave rise to parliaments, diets,
estates-generals, Cortes, etc., which served to limit the powers of the monarch. A.
R. Myers (Parliaments and Estates in Europe to 1789, 1975) notes:

Almost everywhere in Latin Christendom the principle was, at one time or
another, accepted by the rulers that, apart from the normal revenues of the
prince, no taxes could be imposed without the consent of parliament…. By
using their power of the purse [the parliaments] often influenced the rulers
policies, especially restraining him from military adventures. [pp. 29-30]

Popular rights, above all protection against arbitrary taxation, were defended
by representative assemblies elected by the tax-bearing classes and were often
enshrined in charters that the rulers felt more or less obliged to respect.
In the most famous of these, the Magna Carta, which the barons of England extorted
from King John in 1215, the first signatory was Stephen Langton, Archbishop
of Canterbury.

In a synthesis of modern scholarship (Inventing the Middle Ages,
1991), Norman F. Cantor has summarized the heritage of medieval times

In the model of civil society, most good and important things take place
below the universal level of the state: the family, the arts, learning, and
science; business enterprise and technological process. These are the work
of individuals and groups, and the involvement of the state is remote and
disengaged. It is the rule of law that screens out the state’s insatiable
aggressiveness and corruption and gives freedom to civil society below the
level of the state. It so happens that the medieval world was one in which
men and women worked out their destinies with little or no involvement of
the state most of the time. [p. 416]

One highly significant factor in the advance of the West is its relative lack
of institutionalized envy. The sociologist Helmut Schoeck (Envy: A Theory
of Social Behavior, 1987) has drawn attention to the omnipresence of
envy in human societies. Perceived as a grave threat by those at whom it
is directed, it typically results in elaborate envy-avoidance behavior: the
attempt to ward off the dangers of malicious envy by denying, disguising,
or suppressing whatever traits provoked it. The anti-economic consequences
of socially permitted--or even encouraged--by envy and reactive envy-avoidance
scarcely lend themselves to quantification. Nonetheless, they may clearly
be highly damaging. Western culture has somehow been able to inhibit envy
to a remarkable degree, a fact that Schoeck links to the Christian faith:
“It must have been one of Christianity’s most important, if unintentional,
achievements in preparing men for, and rendering them capable of, innovative
actions when it provided man for the first time with supernatural beings
who, he knew, could neither envy nor ridicule him.”

Thus, long before the 17th century, Europe had produced political and legal
arrangements and personal attitudes—a whole way of life—that set the stage
for both individual freedom and the later industrial “takeoff.”

With the Reformation and the French Revolution, the Church felt compelled
to turn to the state to fight its Protestant and then its anti-Christian enemies
(an alliance that lasted into the 19th century). By then, though, the job of
the Catholic Church in engendering Western liberty was done.

THE CONVERSATION

My thanks to Ralph Raico, David Gordon, and Jason Brennan for their thoughtful
commentaries. They covered an extremely broad range of topics, so, given my
space limitations, I am unable to reply to everything. Perhaps I can comment
on neglected points in subsequent exchanges.

In the opinion of Mises, liberalism was largely a product of the Enlightenment.
In Socialism: An Economic and Sociological Analysis, he referred to “the dislike
which the Church has shown for economic liberty and political Liberalism in
any form.” Mises continued:

Liberalism
is the flower of that rational Enlightenment which dealt a death
blow to the regime of the old Church and from which modern historical criticism
has sprung. It was Liberalism that undermined the power of the classes that
had for centuries been closely bound up with the Church. It transformed the
world more than Christianity had ever done. It restored humanity to the world
and to life.[18]

Ralph wrote: “In my view, a reliable guide to the history of liberty is Lord
Acton.”

I share Ralph’s enthusiasm for Acton. Indeed, I first became familiar with
Acton’s account of the history of western freedom from one of Ralph’s brilliant
lectures in the late 1970s, and I later published two articles on what I call
the “Acton Thesis.”[19] It
should be understood, however, that Acton did not regard the Church as a powerful
force for liberty per se after Constantine forged an alliance between Christianity
and the Roman state during the fourth century.

According to Acton, neither church nor state (i.e., the secular powers) favored
liberty, but, while competing for allies, each granted various immunities and
privileges to towns, parliaments, universities, guilds, and other corporations.
Eventually some of these institutions were able to resist the power of both
church and state – and so there evolved a decentralized system of power unknown
to the ancient world and the East. Individual liberty was a happy byproduct
of this system. As Acton wrote in “The History of Freedom in Christianity":
“If the Church had continued to buttress
the thrones of the kings whom it anointed,
or if the struggle had terminated speedily in an undivided victory, all Europe
would have sunk down under a Byzantine or Muscovite despotism. For the aim
of both contending parties was absolute authority.”[20] Thus the primary role
of the Church in the history of western freedom lay not in its liberal tendencies
but in functioning as a counterweight to competing secular powers.[21]

Ralph wrote that “St. Augustine and other Christian writers had desacralized the state and thus radically altered the conception prevalent in Greco-Roman
antiquity.” This is certainly a legitimate point, but there is another side
to the story. Augustine, for example, developed a systematic justification
of religious persecution that would exert a profound and deleterious influence
for centuries to come.

Moreover, like many Church Fathers, Augustine used the doctrine of original
sin to justify slavery and the state. In this approach human laws should function
as a divinely ordained punishment and remedy for sin, not as a protection for
individual freedom. We see one of many consequences of this theory in Augustine’s
account of the degenerative causes that led to the sack of Rome in 410. Among
other things, Augustine blamed the moral laissez-faire of Rome. I know of no
better description in ancient literature of a free society than is described
in the following passage, but Augustine condemned the very policies that later
classical liberals and libertarians would defend.

The laws should punish offences against another’s property, not offences
against a man’s own personal character. No one should be brought to trial
except for an offence, or threat of offence, against another’s property,
house, or person; but anyone should be free to do as he like about his own,
or with his own, or with others, if they consent.[22]

[Editor: In the edition used on the OLL the quote comes from City Of
God,
Book II, chap. 20. "Let
the laws take cognizance rather of the injury done to another man’s property, than of that done to one’s own
person. If a man be a nuisance to his neighbor, or injure his property, family,
or person, let him be actionable; but in his own affairs let every one with
impunity do what he will in company with his own family, and with those who
willingly join him."]

To conclude: Christianity was an extremely broad stream of thought; to use
A.V. Dicey’s metaphors, it contained ideological currents, counter-currents,
and cross-currents. In my opinion, to speak of the historical influence of
Christianity on such-and-such is to reify an abstraction. I would be the last
to deny the indispensable role that countless Christians played in the development
of free institutions and libertarian ideas, but important contributions were
also made by deists, secularists, atheists, and so forth.

(2) I shall now turn to some of David Gordon’s comments.

David wrote: “George quotes a puzzling remark from Locke: At any rate, it
has puzzled me. ‘The rightness of an action does not depend on its utility;
on the contrary, its utility is a result of its rightness.’…What exactly does
Locke mean?”

The sentence I quoted by Locke is the last line of his Essays on the Law
of Nature.[23] Locke wished to rebut the claim that there is “no such
thing as a natural law of justice, or, if it exists, it is the height of
folly, inasmuch as to be mindful of the advantages of others is to do harm
to oneself.” Locke was addressing the argument that “each person’s own interest
is the standard of what is just and right,” and that “nothing in nature is
binding except so far as it carries with it some immediate personal advantage.”
Locke replied, in essence, that our estimates of personal advantage cannot
be the “basis of natural law,” because we would be unable to pursue our rational
interests in a society with no regard for the natural law of justice, a society
in which there is no security for life and property. Locke concluded that
“utility is not the basis of the [natural] law or the ground of obligation,
but the consequence of obedience to it.” In other words, justice is the standard that
must be followed if the goal of utility is to be achieved. It is
in this sense that the utility of an action is the result of its
rightness. It is by adhering to the latter than we attain the former.

David wrote: “In sum, the supporters of natural rights argued in this way.
‘In order to figure out how to lead a good life, we need to examine human nature.
If we do so, we will discover that people require a protected sphere of activity
in order to flourish. Living in a society that guarantees this sphere of activity
though rights that the government cannot violate will best promote human flourishing.’
Does this not raise a question? Are not people who argue in the way just described
themselves appealing to social utility?”

Yes. But as I pointed out at various places in my book, this traditional approach
to natural rights invoked social utility (or the public good, or the greatest
happiness, etc.) as the purpose of legislation, not as its standard. Only by
using natural rights as the standard of legislation can public utility (which
cannot be calculated directly) be achieved.

David wrote: “Did Bodin speak of the sovereign’s right to compel obedience?”

Unfortunately, I cannot say without further research whether or not Bodin
referred explicitly to the right of a sovereign to compel obedience, but he
certainly wrote about the “rights of sovereignty” and the “rights of majesty”
at various places in Six Books of the Commonwealth. And in at least one instance,
Bodin used the term “inalienable” in regard to the rights that constitute the
“marks of sovereignty.”

Here I am omitting many petty rights on which sovereign princes insist in
one or another country, but which are in no way marks of sovereignty. For
the latter are proper to all sovereign princes to the exclusion of all other
lords having administration of justice, magistrates, and subjects; and by
their very nature they are untransferable, inalienable, and imprescriptible.[24]

Since the power of legislation was one of Bodin’s inalienable rights of sovereignty,
I don’t think it is a stretch, given the meaning of “legislation,” to translate
this as the inalienable right of a sovereign to compel obedience.

(3) Since Jason agreed with much of what I had to say in my book, it is difficult
to find something to disagree with him about. There is, however, one issue
that I would like to discuss briefly, namely Jason’s distinction between “rightful
freedoms” and “wrongful freedoms.”

In Chapter 7 of my book (p. 139), I wrote:

This conception of freedom as a social concept is a recurring theme of liberal
individualism (though it was not always consistently upheld). In linking “a
state of perfect freedom” to “a state also of equality, wherein all the power
and jurisdiction is reciprocal, no one having more than another,” Locke set
the stage for later liberals who attempted to express social freedom in terms
of a universal principle of equality.

I then quoted Kant’s
“universal law” of freedom and Spencer’s
“law of equal freedom.” [25] The
point here is that an important strain in classical liberalism – one with
which I largely agree – conceives of “freedom” as a social state of affairs
in which no coercion is present. Thus if a man points a gun at me and demands
money, he is not exercising a “wrongful freedom” to steal; rather, by introducing
coercion into our relationship, he has violated the
social condition known as “freedom.” Thanks to his action, we are in a coercive
relationship rather than in a free
relationship.

Unfortunately, classical liberals were sometimes unclear about the meaning
of “freedom,” and I can think of a number of instances in the literature that
would support Jason’s distinction between rightful and wrongful freedom. Nevertheless,
when liberals referred to a “free” society, they typically meant a society
in which every (competent) adult is able to exercise equal rights. And implicit
in this notion of equal rights, I believe, is the idea of equal freedom that
Kant and Spencer would later formulate explicitly.

[20]Essays
on Freedom and Power, ed. Gertrude Himmelfarb (Boston:
Beacon Press, 1948), 62. This is from the same passage quoted by Ralph. The
edition on the OLL is John Emerich Edward Dalberg, Lord Acton, The History
of Freedom and Other Essays, ed. John Neville Figgis and Reginald Vere
Laurence (London: Macmillan, 1907). </title/75>.

[21] As
I point out in my Cato essay (cited above), various secular historians before
Acton, such as Voltaire, Condorcet, and W.E.H. Lecky, employed a similar thesis,
though Acton developed that thesis more broadly and in more detail than any
of his predecessors. [See also works in the OLL by Voltaire
(1694-1778); Condorcet
(1743-1794); William
Lecky (1838-1903)].

[22] Concerning
the City of God Against the Pagans, trans. Henry Bettenson
(London: Penguin Books, 1967), 71. The edition of "The City of God" on
the OLL is Philip Schaff, A Select Library of the Nicene and Post-Nicene
Fathers of the Christian Church. Vol. II St. Augustin’s City of God and Christian
Doctrine,
ed. Philip Schaff, LL.D. (Buffalo: The Christian Literature Co., 1887). </title/2053/152827>.
[The full
passage from the OLL version:
"But the worshippers and admirers of these gods delight in imitating their
scandalous iniquities, and are nowise concerned that the republic be less depraved
and licentious. Only let it remain undefeated, they say, only let it flourish
and abound in resources; let it be glorious by its victories, or still better,
secure in peace; and what matters it to us? This is our concern, that every
man be able to increase his wealth so as to supply his daily prodigalities,
and so that the powerful may subject the weak for their own purposes. Let the
poor court the rich for a living, and that under their protection they may
enjoy a sluggish tranquillity; and let the rich abuse the poor as their dependants,
to minister to their pride. Let the people applaud not those who protect their
interests, but those who provide them with pleasure. Let no severe duty be
commanded, no impurity forbidden. Let kings estimate their prosperity, not
by the righteousness, but by the servility of their subjects. Let the provinces
stand loyal to the kings, not as moral guides, but as lords of their possessions
and purveyors of their pleasures; not with a hearty reverence, but a crooked
and servile fear. Let the laws take cognizance rather of the injury done to
another man’s property, than of that done to one’s own person. If a man be
a nuisance to his neighbor, or injure his property, family, or person, let
him be actionable; but in his own affairs let every one with impunity do what
he will in company with his own family, and with those who willingly join him.
Let there be a plentiful supply of public prostitutes for every one who wishes
to use them, but specially for those who are too poor to keep one for their
private use. Let there be erected houses of the largest and most ornate description:
in these let there be provided the most sumptuous banquets, where every one
who pleases may, by day or night, play, drink, vomit, dissipate. Let there
be everywhere heard the rustling of dancers, the loud, immodest laughter of
the theatre; let a succession of the most cruel and the most voluptuous pleasures
maintain a perpetual excitement. If such happiness is distasteful to any, let
him be branded as a public enemy; and if any attempt to modify or put an end
to it let him be silenced, banished, put an end to. Let these be reckoned the
true gods, who procure for the people this condition of things, and preserve
it when once possessed. Let them be worshipped as they wish; let them demand
whatever games they please, from or with their own worshippers; only let them
secure that such felicity be not imperilled by foe, plague, or disaster of
any kind. What sane man would compare a republic such as this, I will not say
to the Roman empire, but to the palace of Sardanapalus, the ancient king who
was so abandoned to pleasures, that he caused it to be inscribed on his tomb,
that now that he was dead, he possessed only those things which he had swallowed
and consumed by his appetites while alive? If these men had such a king as
this, who, while self-indulgent, should lay no severe restraint on them, they
would more enthusiastically consecrate to him a temple and a flamen than the
ancient Romans did to Romulus."]

[25] [Editor: In the edition of Kant's Science of Right (1796) on the OLL the
quote is: "‘Every
Action is right which in itself, or in the maxim on which it proceeds, is such
that it can co-exist along with the Freedom of the Will of each and all in
action, according to a universal Law.’ If, then, my action or my condition
generally can co-exist with the freedom of every other, according to a universal
Law, any one does me a wrong who hinders me in the performance of this action,
or in the maintenance of this condition. For such a hindrance or obstruction
cannot co-exist with Freedom according to universal Laws." From Immanuel
Kant, The Philosophy of Law: An Exposition of the Fundamental Principles
of Jurisprudence as the Science of Right, by Immanuel Kant, trans. W. Hastie (Edinburgh:
Clark, 1887). Introduction to the Science of Right. C. Universal Principle
of Right. </title/359/55687>.

The quote from Spencer comes from Social Statics: or, The Conditions essential
to Happiness specified, and the First of them Developed, (London: John Chapman,
1851), Part II, Chap. IV "Derivation of a First
Principle": "This, however, is not the right of one but of all. All
are endowed with faculties. All are bound to fulfil the Divine will by exercising
them. All therefore must be free to do those things in which the exercise of
them consists. That is, all must have rights to liberty of action. And hence
there necessarily arises a limitation. For if men have like claims to that
freedom which is needful for the exercise of their faculties, then must the
freedom of each be bounded by the similar freedom of all. When, in the pursuit
of their respective ends, two individuals clash, the movements of the one remain
free only in so far as they do not interfere with the like movements of the
other. This sphere of existence into which we are thrown not affording room
for the unrestrained activity of all, and yet all possessing in virtue of their
constitutions similar claims to such unrestrained activity, there is no course
but to apportion out the unavoidable restraint equally. Wherefore we arrive
at the general proposition, that every man may claim the fullest liberty to
exercise his faculties compatible with the possession of like liberty by every
other man." </title/273/6206/932826>.]

Justice being taken away, then, what
are kingdoms but great robberies? For what are robberies themselves,
but little kingdoms? The band itself is made up of men; it is ruled by
the authority of a prince, it is knit together by the pact of the confederacy;
the booty is divided by the law agreed on. If, by the admittance of abandoned
men, this evil increases to such a degree that it holds places, fixes abodes,
takes possession of cities, and subdues peoples, it assumes the more plainly
the name of a kingdom, because the reality is now manifestly conferred
on it, not by the removal of covetousness, but by the addition of impunity.
Indeed, that was an apt and true reply which was given to Alexander the
Great by a pirate who had been seized. For when that king had asked the
man what he meant by keeping hostile possession of the sea, he answered
with bold pride, “What thou meanest by seizing the whole earth; but
because I do it with a petty ship, I am called a robber, whilst thou who
dost it with a great fleet art styled emperor.” [26]

This, it must be admitted, was a profound insight into the true nature of
states, and stands in sharp contrast to classical antiquity.

George admires the “laissez-faire” morality of the Roman Empire.
It is possible for those with different standards to disagree. In fact, that
morality was through and through pornographic. It included, for instance, the
posting of erect phalluses in front of homes. Men openly carried amulets of
the male genitals around their necks and touched them often, for luck. Much
worse were the filthy blood games in the arena, the favorite pastime of the
Roman populace. There the crowd eagerly witnessed and cheered the horrible
deaths of unarmed victims as well as fighters, savoring each detail. The Church
put an end to all that. One may be excused for sympathizing with G.K. Chesterton
when he wrote that, given the moral standards prevalent in the Roman Empire,
a period of cleansing of society was called for.

All three of the “Abrahamic” religions were persecutors when they
had the upper hand. Islam, of course; Judaism at the time of Jesus and His
Apostles. The major Christian denominations were also oppressors, with the
notable and noble exception of the Baptists, to their great credit. The world-historical
difference that Catholicism made is this: regardless of its intentions, it
played a critical role during crucial centuries in thwarting state power. This
could only have been accomplished by an independent, international, and powerful
Church. In this way, the Church enabled the growth of freedom and classical
liberalism in the West, as testified to by the scholars I cited in my original
post and left unaddressed by George.

Endnote

[26] Philip
Schaff, A Select Library of the Nicene and Post-Nicene Fathers of the Christian
Church. Vol. II St. Augustin’s City of God and Christian Doctrine,
ed. Philip Schaff, LL.D. (Buffalo: The Christian Literature Co., 1887). BOOK
IV. 1 </title/2053/152949/2734396>.
This quote was also feature iin one of the "Quotes of the Week" on
the OLL </quote/200>.

3. George Smith replies to
Ralph Raico: And the Secular Powers Checked the Church [Posted: 23 September,
2013]

Ralph Raico quotes a
famous passage from Augustine’s City of God and concludes:
“This, it must be admitted, was a profound insight into the true nature of
states, and stands in sharp contrast to classical antiquity.”

Ralph’s conclusion depends on what we think Augustine was saying. He was by
no means condemning the state per se; on the contrary, Augustine was a big
booster of the state, especially if it enforced Christian principles. His example
of Alexander the Great and the pirate was taken directly from Cicero:

For when a [pirate] was asked what
criminal impulse had led him to make
the sea unsafe with a single little ship, he replied, “The same impulse which
has led you, [Alexander], to make the whole world unsafe.[27]

The fact that Augustine’s entire discussion was based on Cicero’s treatment
of commonwealths indicates that he was not breaking new ground. Like Cicero,
Augustine was discussing the question of whether justice is a necessary component
of a true commonwealth. There have been two major interpretations of Augustine’s
own position, which I won’t go into here,[28] but the claim that justice is
required for a legitimate state was a staple of classical political philosophy,
as we see in the writings of Plato, Aristotle, and (most pertinent to Augustine)
the Stoics.

Ralph wrote: “George admires the ‘laissez-faire’ morality of the Roman Empire.
It is possible for those with different standards to disagree.”

I simply pointed out that Augustine did not recognize the distinction between
vices and crimes – a distinction that later became a cornerstone of classical
liberalism and libertarianism. According to Augustine, the institution of government,
which was authorized by God as a punishment and remedy for sin, has a divine
mandate to repress and punish sinful behavior. True, the category of sinful
behavior includes what libertarians view as rights-violating activities, but
the category also includes personal beliefs and self-regarding actions. There
was nothing liberal or libertarian about Augustine’s view of the proper functions
of government. On the contrary, Augustine’s extensive defense of “righteous
persecution,” according to which people may be coerced for their own good,
was one of the most pernicious doctrines in the history of Western civilization.
Moreover, as every libertarian knows, to say that people should be free to
do x does not imply a moral sanction of x.

Ralph wrote: “The world-historical difference that Catholicism made is this:
regardless of its intentions, it played a critical role during crucial centuries
in thwarting state power. This could only have been accomplished by an independent,
international, and powerful Church.”

I agree with this analysis, as I thought I made clear in my original comment.
I stated that the main value of the Catholic Church, so far as its contribution
to freedom is concerned, is that it sometimes served as a countervailing power
against various secular powers and thereby prevented the establishment of one
centralized power throughout Europe. But this role had little or nothing to
do with the ideology of the Church itself, which was as absolutist as any secular
state and sometimes advocated policies that were more oppressive than those
desired by secular princes. Indeed, as many historians have pointed out, the
Church itself was a type of state, in substance if not in name. To quote the
distinguished medieval historian R.W. Southern:

In a word, the church was a compulsory society in precisely the same way as
the modern state is a compulsory society…. It had all the apparatus of the
state: laws and law courts, taxes and tax-collectors, a great administrative
machine, power of life and death over the citizens of Christendom and their
enemies within and without. It was the state at its highest power, such as
even Hegel among modern prophets of the state scarcely contemplated.[29]

If we may say that the church prevented secular powers from becoming as totalitarian
as they would have liked, we may also say, with equal justification, that those
selfsame secular powers prevented the church from becoming as totalitarian
as it would have liked. (Acton
made precisely this point.) The medieval church,
according to its defenders, had legitimate jurisdiction over all of Christendom,
and its more extreme defenders (“papalists") extended this jurisdiction to
the entire world. I can think of no medieval defender of secular power who
made a comparable claim for princes and emperors.

Endnotes

[27] Marcus
Tullius Cicero, On the Commonwealth, trans. George Holland
Sabine and Stanley Barney Smith (Indianapolis and New York: Bobbs-Merrill,
n.d. [reprint of the 1929 ed. by Ohio State University Press]), 210. [The translation
of Cicero on the OLL is The Political Works of Marcus Tullius Cicero: Comprising
his Treatise on the Commonwealth; and his Treatise on the Laws. Translated
from the original, with Dissertations and Notes in Two Volumes. By Francis
Barham, Esq. (London: Edmund Spettigue, 1841-42). Vol. 1. Chapter: CICERO’S
COMMONWEALTH.: BOOK III. </title/546/83303/1958539>.]

[28] For
a good discussion of this controversy, see Charles Howard McIlwain,
The Growth of Political Thought in the West: From the Greeks to the End
of the Middle Ages (New York: Macmillan, 1932), 154-60.

[29] R.W.
Southern, Western Society and the Church in the Middle Ages (Harmondsworth,
England: Penguin Books, 1970), 17-18.

4. David Gordon, "Is
Social Utility Enough to Justify Natural Rights?" A Response to George
Smith [Posted: September 24, 2013]

I am grateful to George for his answers to my questions. One of my inquiries
had to do with the contrast, drawn in George’s book, between classical
liberals who believed in inalienable rights that are not to be violated, and
other classical liberals who believed only in a presumption of liberty. In
the latter group’s view, interference with liberty was usually a bad
idea, but they were prepared to allow it if such interference could be shown
to promote the general welfare.

That group obviously appeals to what best promotes happiness. My question
was: to what extent does the former group do so as well. If one says, “Society
ought to be organized so that each person is granted a protected sphere of
liberties that is not to be interfered with, because doing this will be best
for everyone, or nearly everyone,” isn’t this proposal also an
appeal to social utility?

In response George says, “[A]s I pointed out at various places in my
book, this traditional approach to natural rights invoked social utility (or
the public good, or the greatest happiness, etc.) as the purpose of
legislation, not as its standard. Only by using natural rights as
the standard of legislation can public utility (which cannot be calculated
directly) be achieved.”

George’s answer was precisely the starting point for my question. If
one says that the way to advance social utility is to respect individual rights,
is this not still an appeal to utility? Certainly, in this approach utility
is not the standard for deciding what to do in particular cases; but it explains
why the standard of rights is adopted.

To say that social utility is best promoted by respecting a sphere of rights
for each person is not sufficient, it seems to me, to justify the claim that
each person has certain moral, or natural, rights. That claim ascribes rights
to persons owing to morally relevant properties they have: the claim is that
because people are such-and-such, they ought morally to be treated in particular
ways. The claim that things will go better for people if they are treated in
these ways is a different one, though one may make both claims, as some classical
liberals in fact did.That is, one can hold that people ought morally to be
treated in certain ways, and that doing this will promote social utility. To
hold, though, that rights should be the standard of legislation does not suffice
to make these rights natural, or moral. (The difference between “natural” and
“moral” would be another question well worth pursuing.)

Commonsense moral thinking is sensitive to consequences without being consequentialist.
A consequentialist moral theory holds that the rightness and wrongness of actions
is determined at a fundamental level entirely by the consequences of those
actions. (Act consequentialist theories say every individual act is to be evaluated
individually, while rule consequentialists say that moral codes are to evaluated
as a whole.) Most moral theories hold that consequences matter; they just aren’t
all that matter. So, for instance, Adam Smith thought that part of what justified
the system of
natural liberty, the division of labor, and free trade were the
consequences of the attendant moral norms, and he also was worried about some
of the potential negative consequences. (For instance, he worried that the
division of labor might stultify workers.[30]) But Adam Smith rejected utilitarian
theories -- he didn’t think consequences were all that matter.

What justificatory role do consequences play in a classical-liberal theory?
For some classical liberals, consequences are the whole story. But for most,
consequences are at least part of the story. So, for instance, to simplify
Locke a little, part of what justifies a system of private property is that
it can be expected to be for the benefit of all. To remove items from the commons
and claim them as our own, we must leave enough and as good for others. But,
Locke thinks, the system of private property, under the right institutions,
can be expected to leave more and better for others, not merely enough
and as good. For most classical liberals, if they became convinced that their favored
institutions would have disastrous consequences from a humanitarian point of
view, they would stop advocating those institutions.

If consequences matter, why not say that only consequences matter? I once
heard John Yoo make the
following argument:

Almost everyone agrees that some rights can be overridden or trumped in
order to prevent catastrophic moral disasters.

Of course, 2 doesn’t follow from 1. And one reason for that is that if you care
about consequences, you don’t want people to live by an act consequentialist
moral code. So, for instance, John Stuart Mill argues that if you want good
consequences -- such scientific progress, advancement in the arts, cultural
progress, peace, and feelings of mutual respect -- then you need to allow a
wide sphere of free speech regardless of the consequences. This may sound paradoxical.
However, Mill says, the policy of only allowing beneficial speech has no history
of being beneficial. The policy of allowing speech only when society judges
that speech to be in its best interests has no history of being in society’s
best interests.

I agree with David that consequentialist concerns are usually not enough to
ground basic moral rights. But I also think it’s important that living by classical-liberal
principles (including principles of rights) should be expected, under normal
circumstances, to produce good consequences in general. Otherwise, we would
see morality and justice as a kind of curse, rather than as a system that helps
us live together in peace and prosperity.

Principled or Ad Hoc?

With that in mind, I have a question for George Smith. As he notes, few of
the classical liberals he discusses were what he would call libertarian. They
advocated some state regulation, state provision of certain so-called public
goods, state-subsidized or state-provided public education, and certain welfare-state
and social-insurance programs. So, my question: Do you see these as ad hoc
concessions to commonsense politics, inconsistent with the various classical
liberals’ fundamental moral principles? Or do you see these positions as consistent
with their fundamental moral views?

Endote

[30] See Dennis Rasmussen, The Problems and Promise of Commercial Society:
Adam Smith’s Response to Rousseau (College Station: Pennsylvania State University
Press, 2008).

Jason asked: “What justificatory role do consequences play in a classical-liberal
theory.”

My short answer to this question, viewed historically, is: Consequences were
indispensable to the major theories of justice in the classical-liberal tradition.
Indeed, I think this answer would be virtually self-evident to every classical
liberal, the deontologism of Kant notwithstanding. But, as we shall see, to
describe such theories as “consequentialist” is not very helpful in understanding
them.

Here we must distinguish between consequentialists and utilitarians. A concern
with the consequences of moral and/or just actions does not necessarily make
one a utilitarian, in the strict sense. Unfortunately, I cannot pursue this
distinction here, but consider Jason’s mention of act versus rule utilitarianism.
Although we might say that the liberal conception of rights was a type of rule
utilitarianism, this categorization would be misleading in some respects, especially
(as I discuss in my book) in regard to the doctrine of inalienable rights.

Although the act/rule distinction is found as early as 1785, in William Paley’s
influential book The Principles
of Moral and Political Philosophy, natural-law
philosophers focused more on the distinction between short-term and long-term
consequences. And in the assessment of long-term consequences, they typically
appealed to the fundamental nature of human beings and social interaction as
the basis for their theories of justice.

A recurring theme – one found most prominently in the writings of Hugo Grotius
(1583-1645) -- grounds justice in enlightened, or rational, self-interest.
In the words of Richard Tuck, Grotius “went back to the principles of the Stoics
… in particular the Stoic claim that the primary force governing human affairs
is the desire for self-preservation. But he interpreted this desire in moral terms,
as the one and only universal right: no one could ever be blamed for
protecting themselves….”[31]

Man has an “impelling desire for society,” according to Grotius, but the benefits
of social interaction are conditional. Other people can harm us as well as
help us, so certain conditions must be maintained if we are to reap the advantages
of social interaction. Fortunately, man possesses the unique ability to reason,
which Grotius describes as “the faculty of knowing and acting in accord with
general principles.”[32] Reason thus enables man to formulate and act upon the
general principles that set the foundation for a beneficial social
order.

Foremost among these conditions is the preservation of one’s suum,
i.e., moral jurisdiction and power over one’s life, body, and liberty. For
Grotius, these spheres of moral jurisdiction are expressed is terms of rights,
which define and delimit the use of physical force in society. Grotius would
have agreed wholeheartedly with Ayn Rand’s statement that “Individual rights
are the means of subordinating society to moral law.”[33]

According to Grotius, people form political societies primarily for
the purpose of protecting their rights from the violent invasions of others:
“the end of society is to form a common
and united aid to preserve to every
one his own.” Self-preservation is a fundamental right that is violated by
the initiation of physical force, so self-defense is a right “which
nature grants to every one.”[34] Rights “do not prohibit all use of force,
but only that use of force … which attempts to take away the rights of
another.”[35] The
right of self-defense justifies the retaliatory use of force: “a person, if
he has no other means of saving his life, is justified in using any forcible
means of repelling an attack.”

Now consider the position of Emer de Vattel (1714-1767), whose writings on
natural law were widely read in 18th-century America. Vattel was unusual among
philosophers of natural law in that he attempted to ground our moral obligationto
observe the rules of justice ultimately and solely on self-interest.
Although Vattel agreed with Grotius that rights are necessary preconditions
for a beneficial social order, he denied that our obligation to observe the
rules of justice is based on some kind of concern for society. Rather, rational
self-interest is the foundation of juridical obligations. Here is a summary
of Vattel’s approach:

Each individual has as a
general and overriding motive [for] his own self-interest,
and this motive creates the obligation to which he is liable: it is an unvarying
principle of his decisions, against which it would be absurd to claim that
he could be made to act. But if society is useful and even necessary to him,
and this society is unable to subsist without laws or general rules observed
by all its members, he is obliged, by virtue of his own expediency, to follow
them. He ought not even consider sacrificing them to an immediate advantage,
because they are what guarantee him peaceful enjoyment of all his other goods.[36]

This brief discussion illustrates the variations to be found in the theories
of justice defended by natural-law philosophers during the 17th and 18th centuries
– and there are many, many more. So may these be described as “consequentialist”?
Well, I suppose so, but this label doesn’t tell us much, since consequences in
some sense were taken for granted in all such theories.

At the conclusion of his comment, Jason asked if I regard those classical
liberals as inconsistent who defended state activities beyond those activities
that modern libertarians would endorse. My answer is No, since (as I discuss
in my book) they typically worked from a presumption of liberty. Their
main problem, as I see it, was that these liberals rarely formulated clear
principles of defeasibility, so exceptions to the presumption of liberty came
fast and furious, until the presumption itself became so diffuse as to be virtually
meaningless.

In short, the ideal of individual freedom died the death of a thousand qualifications.

Endnotes

[32] Hugo Grotius, Prolegomena to the Law of War and Peace, trans.
Francis W. Kelsey (Indianapolis: Bobbs-Merrill, 1957), 8. Another version
of the Prolegomena is available in the Liberty Fund edition as "The
Preliminary Discourse." The quote is

"But it must be owned that a Man
grown up, being capable of acting in the same Manner with respect to Things
that are alike, has, besides an exquisite Desire of Society, for the Satisfaction
of which he alone of all Animals has received from Nature a peculiar Instrument,
viz. the Use of Speech; I say, that he has, besides that, a Faculty of knowing
and acting, according to some general Principles; so that what relates to
this Faculty is not common to all Animals, but properly and peculiarly agrees
to Mankind."

Hugo Grotius, The Rights of War and Peace, edited and with
an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis:
Liberty Fund, 2005). Vol. 1. Chapter: THE PRELIMINARY DISCOURSE Concerning
the Certainty of Right in general; and the Design of this Work in particular.
</title/1425/138591/2633704>.

[34] Hugo Grotius, The Rights of War and Peace, trans. A.C. Campbell
(Washington and London: M. Walter Dunne, 1901), 33, 291. Available online at
the OLL: Hugo Grotius, The Rights of War and Peace, including the Law of
Nature and of Nations, translated from the Original Latin of Grotius, with
Notes and Illustrations from Political and Legal Writers, by A.C. Campbell,
A.M. with an Introduction by David J. Hill (New York: M. Walter Dunne, 1901).
CHAPTER II.: Inquiry Into the Lawfulness of War. </title/553/90747/2052953>;
CHAPTER I.: What is Lawful in War. </title/553/90793/2053707>.

[35] Quoted in Stephen Buckle, Natural Law and the Theory of Property: Grotius
to Hume (New York: Oxford University Press, 1991), 28. This quote is also
available in the Liberty Fund edition, Hugo Grotius, The Rights of War
and Peace, edited and with an Introduction by Richard Tuck, from the Edition
by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 1. CHAPTER
II: Whether ’tis ever Lawful to make War.

"But Right Reason, and the Nature
of Society, which is to be examined in the second and chief Place, does not
prohibit all Manner of Violence, but only that which is repugnant to Society,
that is, which invades another’s Right." </title/1425/138595/2633807>.

[36] Emer de Vattel, Essay on the Foundation of Natural Law and on the First
Principle of the Obligation Men Find Themselves Under to Observe Laws,
trans. T.J. Hochstrasser, in Emer de Vattel, The Law of Nations, Or, Principles
of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns,
with Three Early Essays on the Origin and Nature of Natural Law and on Luxury,
edited and with an Introduction by Béla Kapossy and Richard Whitmore (Indianapolis:
Liberty Fund, 2008), 754-55. </title/2246/212566/3431624>.

7. George H.
Smith, "Natural Rights and Moral Autonomy": A Reply to David Gordon [Posted:
September 25, 2013]

David Gordon suggests that liberal defenders of inalienable rights might have
justified those rights by appealing to social utility in some sense.

Let us first keep in mind that the liberal doctrine of inalienable rights
first arose in regard to freedom of religion, or “liberty of conscience.” Although
advocates of religious freedom often argued that freedom would lessen conflicts
in society, this was an ancillary argument, not a primary one.

There were several basic arguments for freedom of religion. First, this right
was often said to be “inalienable” because it is literally impossible to transfer
one’s ability to reason and form rational beliefs to another person. Thus “inalienable”
in this sense refers to rights that cannot be transferred to another,
not to rights that merely should not be transferred to another. If
the subject of a right -- such as the ability to reason and judge -- cannot
be alienated, then neither can the right associated with that subject.

Another common argument – one found in some early Christian advocates of toleration,
such as Tertullian and Lactantius, as well as later liberal thinkers, such
as the Levellers and John Locke – was that beliefs per se cannot be compelled.
If we don’t see or understand the evidence for something, then no amount of
coercion will change our minds. This was an adjunct to the first argument,
presented above; in both cases the conclusion was that coercion is useless
in matters of belief. Neither of these arguments appeals to social utility.

There was also the argument -- one that rose to prominence after the Protestant
Reformation -- that one’s religious beliefs are exclusively a matter between
oneself and God, for it is to God that we are ultimately accountable. Again,
no appeal to social utility is evident here.

When the inalienable right of liberty of conscience was extended beyond religion
to matters like charity – as we find in Herbert Spencer’s earliest extended
defense of freedom, The Proper Sphere of Government (1842)
– one argument was that only good works voluntarily undertaken can have moral
value. But the main argument was that to trespass on the sphere of conscience
was to violate the moral autonomy of others – to deny their moral status as rational
agents, in effect. At times this moral autonomy was said to be a necessary precondition for
the individual to achieve happiness, but this was not an appeal to
social utility per se. Would “society” be better off if inalienable rights
were respected? Yes, of course, but to call attention to the probable consequence
was not part of the justification in any fundamental sense. Rather, when push
came to shove, the basic contention was that there is a right way to deal with
human beings and a wrong way to deal with human beings, whatever one’s estimate
of the social consequences might be.

I agree wholeheartedly with David’s last paragraph: “To say that social utility
is best promoted by respecting a sphere of rights is not sufficient … to justify
the claim that each person has certain moral, or natural, rights,” etc. I think
David put the matter very well.

8. Ralph Raico,
"A Summing Up" [Posted: Sept. 27, 2013]

It’s time, I think, to sum
up the discussion between George Smith and me, as I see it.

There is no doubt that George is learned in the thought of a number of figures
highly important in the early modern history of classical liberalism and well
versed on liberalism in general. I don’t find, however, that he has sufficiently
considered the question I raised in my first post: “Why the West?” Why did
liberalism arise in the West -- the lands that were or had been in communion
with the bishop of Rome -- and not anywhere else in the world, not even in
the rest of Europe, for example, in Russia?

George concedes that Christianity desacralized the state, a very great step
forward from the Greeks and Romans, who deified it. The bishop of Hippo may
well have derived the story of Alexander the Great and the pirate from Cicero.
But it was his formulation that became famous. It so caught the eye of Noam
Chomsky, the philosopher and left anarchist, for instance, that he used it
as the title of one of his books.

George states that St. Augustine and other Christian leaders were prepared
to use state power to persecute dissenters, which, sadly, is all too true,
as I have said in previous posts. According to George, the saint “blamed the
moral laissez faire of Rome” for helping to cause its downfall. I dislike the
use of laissez faire in this connection, since to me it’s an honorific. George
makes no mention of the blood games in the arena, the favorite entertainment
of the Roman populace. This perhaps casts “Roman morality” in a more sinister
light than as simply a system protecting life and property. It was the Church
that put an end to these games. In the ruins of the Coliseum today stands a
large Cross commemorating that event.

I find George’s discussion of “totalitarianism” curious. He says that the
medieval church was totalitarian in that it claimed jurisdiction over all of
Christendom and some papalists even claimed jurisdiction over the whole world.
He believes that no thinker of the time on the state’s side made comparable
claims for the state.

But “papalists” like Pope Boniface VIII maintained not that the Church should
exercise secular power, but that secular rulers were under the authority of
the pope. There was at least one medieval thinker who did argue for universal
secular monarchy: Dante, in his De Monarchia.

When we consider the real existing totalitarian states of the 20th century,
instead of the putative ones of the 12th, we discover that they were anti-Christian.
The heroes who stood up against them -- Claus von Stauffenberg, who tried to
kill Hitler and was executed when the plot failed, and Alexander Solzhenitsyn,
who exposed the Gulag to the world and was imprisoned and then sentenced to
internal exile for his pains -- were both inspired by their Christian faith.

George passes over in silence the chief occupation of kings, presidents, and
the other masters of states throughout history: war. The misery that it has
brought down on mankind is infinitely greater than the oppression of any church.
In an important article, Joseph R. Stromberg shows that even the so-called
religious wars of the 16th and 17th centuries were actually carried out by
secular rulers, to further their own ends. [37] Stromberg
aptly cites the social historian Charles Tilly’s line: “War made the state
and the state made war.”

Out of self-interest, the Church thwarted the state during a few crucial centuries.
It could do that because it was independent, international, and powerful. George
thinks it was tending to total power, and the medievalist scholar he cites
held it was already all-powerful in the early middle ages. R. W. Southern also
seems to have believed it would remain so for the indefinite future. But these
are speculations. History is full of surprises, and there were other forces
working against Church omnipotence besides the state. It was the state that
veered off towards omnipotence. We are living in a world where it is approaching
that goal, and there is no longer any church that can act as a counterweight.

Ralph Raico again says that I have not “sufficiently considered the question
I raised in my first post: ‘Why the West?’ Why did liberalism arise in the
West…?”

On two previous occasions, I said that I agree (in essentials) with Lord Acton’s
explanation, which is the same explanation that Ralph has proposed. I may disagree
with Ralph about many things, but not with his belief that the medieval church
served as an effective institutional barrier to the growth of absolute power
in the West. Given my agreement with Ralph on this key point, I cannot understand
why he needs more information.

I will add, however, that the emergence of a secular culture in the West contributed
a great deal to the development of liberalism.

Ralph wrote: “George concedes that Christianity desacralized the state, a very
great step forward from the Greeks and Romans, who deified it.”

I originally gave a passing nod to this claim in order to avoid some technical
and potentially tedious exchanges. To be more precise, the claim is true in
part and untrue in part. All this depends on which Greeks and Romans we are
talking about, as well as the time period in question. Aristotle, for example,
did not “deify” the state, nor did Epicureans and Stoics. But (as I have explained
in previous comments) many Christian theologians, including Augustine, viewed
government as a divinely mandated institution -- a punishment and remedy for
sin. So this matter ultimately reduces to what we mean by “desacralize.”

Ralph wrote: “George makes no mention of the blood games in the arena, the
favorite entertainment of the Roman populace. This perhaps casts ‘Roman morality’
in a more sinister light than as simply a system protecting life and property."

I never said anything about Roman moral practices or culture. I simply pointed
out that Augustine opposed the notion that a person “should be free to do as
he likes about his own, or with his own, or with others, if they consent.”
I wasn’t aware that “blood games in the arena” were voluntary activities between
consenting adults.

Ralph wrote: “I find George’s discussion of ‘totalitarianism’ curious. He says
that the medieval church was totalitarian in that it claimed jurisdiction over
all of Christendom and some papalists even claimed jurisdiction over the whole
world. He believes that no thinker of the time on the state’s side made comparable
claims for the state.”

Ralph goes on to say: “There was at least one medieval thinker who did argue
for universal secular monarchy: Dante, in his De Monarchia.”

Dante recommended universal monarchy as an ideal ¬(primarily as a way to end
war); he did not claim that any emperor of his time actually possessed such
jurisdiction. The papalists, in contrast, claimed universal authority for existing popes. In addition, Dante’s ideal monarch did not possess anything like the
absolute power that papalists bestowed upon the pope.

Ralph wrote: “But ‘papalists’ like Pope Boniface VIII maintained not that the
Church should exercise secular power, but that secular rulers were under the
authority of the pope.”

The “plenitude of power” was a traditional Catholic doctrine that invested
popes with jurisdiction over both temporal and spiritual affairs. The theory
was that popes delegated certain tasks to temporal rulers -- an act that was
symbolized by the anointing of rulers. To delegate a power is not to renounce
one’s ultimate authority over that sphere. Christendom was regarded by papalists
as one society, one Christian Republic, with the pope at its head.

The theory that church and state are two independent powers, each with its
own legitimate sphere of authority, was most often defended by critics of the
Catholic Church. Liberal secularists in particular -- those who opposed any
kind of established church -- maintained that the church should have no coercive
authority whatsoever; it should confine itself to the sphere of voluntary beliefs,
practices, and so forth. It took centuries for the church to catch up with
this essential libertarian tenet.

Ralph mentioned some heroes who, “inspired by their Christian faith,” stood
up against 20th-century totalitarian states. Well, shall we compile a list
of those people who, inspired by their Christian faith, committed unspeakable
acts of cruelty and mass murder? The list would be a long one. It is fortunate
that those earlier criminals did not have access to 20th-century weaponry and
technology. True, it was more laborious and time-consuming to depopulate entire
towns and cities with mere swords, but they did what they could with what they
had. Moreover, it is no longer acceptable to excuse the atrocities of the Nazis
and Soviets, whereas apologists for church atrocities are not nearly as rare.
(Lord Acton, though himself a Catholic, relentlessly denounced historical whitewashing
of the church.)

Ralph wrote: “George passes over in silence the chief occupation of kings,
presidents, and the other masters of states throughout history: war. The misery
that it has brought down on mankind is infinitely greater than the oppression
of any church.”

Why is this even relevant to this discussion? As an anarchist, I don’t need
to be tutored in the atrocities of states. In the 19th century, the liberal
historian W.E.H. Lecky wrote that “the
Church of Rome has shed more innocent blood than any other institution that has ever existed among mankind.” I freely
concede that things have changed dramatically since the time Lecky wrote his
comment. I freely concede that the church is no longer in first place, or anywhere
close.

Ralph wrote: “In an important article, Joseph R. Stromberg shows that even
the so-called religious wars of the 16th and 17th centuries were actually carried
out by secular rulers, to further their own ends.”

In part, yes. But though some secular rulers used religion as a cover, the
ferocious emotions that motivated the horrors of those wars were rooted in
religious beliefs and differences. Nationalism wasn’t much of a factor during
the 16th and 17th centuries, but religion was. Massacring heretics was a popular
blood sport among Catholics and Protestants alike.

Ralph wrote: “History is full of surprises, and there were other forces working
against Church omnipotence besides the state. It was the state that veered
off towards omnipotence. We are living in a world where it is approaching that
goal, and there is no longer any church that can act as a counterweight.”

At least the church no longer bestows divine grace on mass murderers by anointing
them. We may take some comfort in that.

As a matter of fact, liberalism developed in a Christian culture. One can
find elements of most western philosophical ideas in other culture’s philosophical
traditions, but widespread liberalism appears in western culture under Christianity,
and not elsewhere. As Ralph Raico has indicated, there seem to be clear intellectual
sources in Christianity for liberalism, the most importance of which is the
desacrelization of the state.

When I was writing A Brief History of Liberty with David Schmidtz, I was struck
by how fragile the path toward liberalism seemed. It’s easy in retrospect to
tell Whiggish history -- though I’m not accusing anyone here of that -- but
it’s also easy to see how the elements of western Christian culture that help
explain why liberalism developed could easily have failed to have led to liberalism.

1. Consider: as Perez Zagorin notes,[38] while Christianity might now be considered
among the most tolerant of religions, at the time it developed, it was much
less tolerant than the religions around it. Greek and Roman religion was pluralistic
and disunified. There were many gods with many different names, a wide variety
of cults, but no doctrine taken as official. Roman religion was largely syncretic.
There were no official sacred texts. In general, most religious views were
permitted, provided they could be integrated with other religious views.

Ancient Mediterranean societies tended to hold that their religions were largely
the same. They weren’t entirely mistaken. Given cultural exchanges and similar
ethnic backgrounds, they did tend to have similar mythologies. The Greek Zeus,
Roman Jupiter, and Etruscan Tinia were largely the same god with the same stories.
Still, partly they were made the same God because the Greeks and Romans were
committed to viewing each others’ gods as the same. So, syncretism was partly
accurate mythography and partly self-fulfilling prophecy.

The reason that early Christians were persecuted in Rome (keeping in mind the
degree of their persecution is exaggerated by Christians) was because of their
refusal to integrate. Christians were exclusivists. In their understanding
of themselves, their God was not some variation of Zeus. (Their understanding
of themselves was not completely accurate, as both Judaism and Christianity
grew out of and adopted pieces of pagan religions.) The Christian refusal to
assimilate made them seem to be a threat.

The ancient Greeks and Romans lacked a firm concept of freedom of religion
in part because they lacked a firm concept of heresy. One crucial distinction
is between heretics and heathens. The heathen, e.g., the pagan or the Jew,
rejects the Catholic Church’s teachings, or often simply has not accepted them.
The heretic, however, is normally considered worse, because the heretic perverts official doctrine. Jews, for instance, deny the divinity of Christ, but they
belong to another religion. A heretic, however, accepts most official doctrine,
but rejects certain pieces. In some sense, the heretic agrees with most of
the Church’s doctrine, while the heathen disagrees. However, the heretic is
considered more evil, because he is considered to have heard God’s word (as
pronounced by the Church) and rejected it, while the heathen is considered
not to have heard. More politically, heresy is a form of treason against the
Church’s authority. Heathens, on the other hand, are enemies of the Church,
but at least are not traitors.

2. Scottish Calvinist reformer John Knox was no friend of liberty -- he advocated
the usual bans on theater and music, and even succeeded in limiting people’s
freedom to move from one parish to another without permission.

Knox decided he wanted the Scots to become God’s Chosen People, and so moved
to instantiate public education. He wanted everyone to be able to read the
Bible, in order to confront the Word of God, and God himself, as individuals,
rather than through intermediaries like the Church. But the problem with teaching
people to read -- and he was immensely successful in that -- is that they might
read and think about much more than you want them to. And so, Knox inadvertently
sowed the seeds of the Scottish Enlightenment, by helping to create a culture
in which even bakers and butchers were checking philosophy books out of local
libraries.

3. Both Zagorin and Herbert Butterfield,[39] among others, claimed that freedom
of religion in the West resulted in part out of exhaustion from the Wars of
Religion. Zagorin goes further than Butterfield in articulating how people
came to have a genuine commitment to freedom of religion rather than just a
mere lack of will or means to keep fighting. And historians tend to regard
most of our current-day commitments to civil liberties as outgrowths and generalizations
of freedom of religion. But, then, imagine what might have happened if one
side had won decisively early on.

4. Christianity desacralized the state, and yet we have had authoritarian,
invasive, and illiberal Christian polities for 1200 years. I don’t want to
gloss over all the things that happened in the first thousand years after the
fall of Rome, but just consider that if one knew everything that had happened
in Europe up until, say, 1450 AD, one could not easily predict the rise of
liberalism.

I’m not so sure what the lesson is here -- just that there must be some lesson
to be learned.

Endnotes

[38] Perez
Zagorin, How the Idea of Religious Toleration Came to the West (Princeton:
Princeton University Press, 2003).

[39] Herbert
Butterfield, Toleration in Religion and Politics (New York: Council on Religion
and International Affairs, 1980), pp. 4-8.

11. Ralph
Raico, "My Final Word" [Posted: September 30, 2013]

George Smith says that he agrees with Lord Acton and me on the importance
of the Church in thwarting the rise of the state to omnipotence. I won’t quote
Lord Acton here, his statement can be found in my first post, “Why
Only in the West?” But I wonder if George understands the full implications.
It was the Church that helped set the stage for the rise of liberalism and
the whole new way of life that followed in the West. He harbors such an implacable
hostility to Roman Catholicism that he never gives it the credit it’s due.

George cites some philosophers in ancient times who did not deify the state.
The point, though, is that the Greek and Roman people -- the societies of
those times -- did. He brings up “Roman morality,” but chooses to discuss it
only in his own restricted terms. Maybe he was unaware of the role of the Church
in stopping the blood games in the arena, where the crowd enjoyed its greatest
thrills, or maybe he was unaware of the games in the first place.

George states that Dante favored universal monarchy merely as an ideal without
actually naming any particularly ruler who espoused it. In fact, the great
poet maintained that the Holy Roman Emperor had authority over all of mankind,
receiving that authority directly from God. As Liberty Fund puts it, in its
online edition of DeMonarchia, Dante held that “Christ in
dying confirmed the jurisdiction of the Roman Empire over all humanity.”

Attempting to rebut Joseph Stromberg’s article showing that the so-called religious
wars of the 16th and 17th centuries were in fact political wars waged by secular
rulers, George writes, “the ferocious emotions that motivated the horrors of
those wars were rooted in religious beliefs and differences.” Unfortunately,
he provides no evidence for this claim.

On war and the state, George feels he doesn’t need to be “tutored” on state
atrocities. I think he does. We are comparing the evils committed by the Church
and the state. The Roman and Spanish Inquisitions together executed some few
thousands over centuries. Leaving aside the earlier, essentially political,
wars, here are some more modern examples of the horrors committed by states
and their military forces: The U.S. army in the Philippines (some 200,000 dead
Filipinos), the Japanese army in Nanking and the Wehrmacht in Russia and the
Ukraine, the British and American air forces over Hamburg, Dresden, Hiroshima,
and Nagasaki, and now American drones all over the Muslim world.

Keeping to his agenda of not crediting the Catholic Church, George makes no
mention of popes like Gregory VII, who denounced secular rulers in ferocious,
contemptuous terms. Nor does he mention St. Thomas Aquinas. St. Thomas, recognized
by the Church as its chief theologian, promoted Aristotelianism, and his Summa
Theologica was set forth in strictly logical form. His formula was
to follow reason as far as it could go, and then faith comes in. Through Thomism
rationality permeated all the Catholic controlled schools and universities
of Europe, and was a permanent contribution to our civilization.

And that’s all I have to say.

12. David Gordon, "The
Anarchy Game" [Posted:
September 30, 2013]

One of the most valuable contributions in George’s book is his account of
what he calls “the Anarchy Game.” Writers on political theory have often attempted
to show that the positions of their opponents led to anarchy. If this could
be done, they thought, they would have exposed a fatal flaw in these positions.
“For centuries, the epithet ‘anarchy’ served the same function in political
debates that ‘atheism’ served in religious debates. If one could show that
the theory defended by one’s adversary logically ended in anarchy, then that
theory stood condemned and nothing more needed to be said against it.” (97)

George shows that this pattern of argument was especially important in the
17th and 18th centuries. Robert Filmer, defending royal absolutism, claimed
that consent theories of government failed to accomplish their goal of providing
a justification for government. No government could pass the tests that genuine
consent requires. Locke, in response to Filmer in the First Treatise,
turned the tables on his predecessor. The absolute sovereign defended by Filmer
was in an anarchical relation with everyone else in his society, because he
could not be held legally responsible for his acts.

George maintains that Edmund Burke “played the Anarchy Game with great skill”
(108) and he offers a penetrating discussion of Burke’s criticism of natural
rights. He says of Burke’s early work A
Vindication of Natural Society that
“Burke of course intended this as satire; by embracing the anarchistic implications
of consent theory, he was attempting to illustrate its absurdity.” (p.109)
Here George differs with Murray Rothbard, who argued in a notable article that
Burke’s work was seriously intended. (“A
Note on Burke’s Vindication of Natural Society,” Journal of the History
of Ideas,
January 1958, 114-18.) Most Burke scholars differ with Rothbard, although Isaac
Kramnick, in The Rage of Edmund Burke (New York: Basic Books, 1977), mentioned
with sympathy Rothbard’s interpretation. I’d like to ask George for his comments
on this piece. I’m sure he rejects its thesis, but it would be good to have
his thoughts about the article.

What was an absurd implication for Filmer was willingly embraced by Lysander
Spooner and a few other radical individualists of the 19th century. If legitimate
government required actual consent, but no actual government met this requirement,
then existing governments were illegitimate. What was formerly taken to be
an absurd implication of consent theory was willingly embraced. I’d like to
call attention to a parallel in the history of science, elaborated with enormous
learning in Amos Funkenstein’s great Science and the Theological Imagination (Princeton, N.J., Princeton University Press, 1986), to my mind one of the
masterpieces of 20th-century historiography. Funkenstein shows that premises,
taken to be absurd, that were used in thought experiments were sometimes adopted
by later writers in their theories of the actual world. Such premises proved
of especial importance in the theory of motion. Evidently both in science and
political theory, it sometimes happens that “the
stone that the builders rejected has now become the cornerstone.” (Psalm 118:22)

13. George H. Smith, "When
Did the Church Defend Freedom of Conscience?" A Final Reply Ralph Raico
[Posted: October 1, 2013]

Ralph Raico wonders if I understand the “full implications” of a passage he
quoted from Lord Acton – a passage that I quoted from as well. Unfortunately,
Ralph failed to quote a crucial part of that passage, a part in which Acton
said that “if the
struggle had terminated speedily in an undivided victory, all Europe would have sunk down under a Byzantine or Muscovite despotism. For
the aim of both contending parties was absolute authority.”

Even in the part quoted by Ralph, Acton says that we owe the rise of civil
liberty, not to the Catholic Church per se, but to that “conflict of over four
hundred years” between the church and various secular powers. Acton knew better
than to attribute liberal ideas to the church of that era; it sought “absolute
authority,” just as various secular powers did, and it was the resulting conflict that prevented any one power from gaining absolute power. I agree that this
institutional conflict among competing powers resulted in something of a stalemate
for a long time, but this doesn’t mean that the Catholic Church was some kind
of pro-freedom, liberal organization.

To address one of the points Ralph makes, let us take a brief glance at Gregory
VII. We should keep in mind that, in his Dicatus Papae (#19), Gregory
claimed that the pope “may be judged by no one.”[[40] This
reflected the absolutist pretensions of the papalists, which included the right
to depose kings and emperors. Thus after Gregory had excommunicated Henry IV,
he called upon German princes to unseat him, so his detestation of secular
powers extended only to those rulers who refused to obey the church. As Tierney
and Painter put it: “Kings and feudal princes were to him essentially police
chiefs who had the duty of using coercive force to achieve objectives laid
down by the church…. He did not covet the policeman’s office. He regarded it
as beneath his dignity.”[41]

Now, I don’t wish to be misunderstood here. I think that the Papal Revolution
(as it is sometimes called) was a good thing for Europe, since it maintained
the independency of the church and thereby prevented a dangerous concentration
of political power. But we need to keep things in perspective. The church was
seeking to maintain its position of power, as were various secular rulers.
And, as with various secular rulers, the church sometimes used that power for
evil purposes.

According to Ralph, “We are comparing the evils committed by the Church and
the state.” I’m afraid that this “we” does not include me, for I completely
agree that states throughout history, collectively considered, murdered far
more people than the church ever did. It is also true that Stalin murdered
far more people than Pol Pot ever did, but I don’t regard this as a mark in
Pol Pot’s favor.

Let us agree, for the sake of argument, with Ralph’s lowball estimate that
the church was responsible for the murders of only a few thousand people during
various inquisitions. Even putting aside all the tortures and imprisonments
that didn’t result in executions, that is still a lot of murders. I find myself
unable to locate liberal tendencies in an institution that was directly responsible
for a few thousand murders, most of which were extremely gruesome.

The church never had much of an army, so, as Ralph surely knows, it frequently
called on secular powers to do its dirty work. It is therefore quite facile
(as Acton repeatedly pointed out) to absolve the church of any responsibility
for the resulting horrors of war. Whom, for example, does Ralph suppose the
Catholic Church backed during the 16th-century Dutch Revolt, as King Philip
II of Spain and his henchman, the Duke of Alba (or Alva) – the fanatical Catholic
commander of the Spanish army in the Netherlands – went on their murderous
rampages? Among other complaints, such as burdensome taxes, the Dutch did not
want the Inquisition brought into their country, and they paid a heavy price
in blood and treasure for their desire to be left alone. So where was the liberal
outrage of the Catholic Church during all this?

Moreover, the church sometimes gave its blessings in retrospect to mass murderers.
Consider the Albigensian crusade in southern France – in particular the horrendous
massacre of heretics (men, women and children) in Béziers (1209). Upon hearing
this good news, Pope Innocent III (one of the supposedly great pontiffs) was
ecstatic. This massacre, Innocent pointed out, was a double blessing: wicked
heretics (the Cathars) were being killed, and their killers were that much
closer to attaining salvation.

God hath mercifully purged his people’s land and the pest of heretical wickedness
... is being deadened and driven away…. Wherefore we give praise and thanks
to God Almighty, because in one and the same cause of his mercy, He hath
deigned to work two works of justice, by bringing upon these faithless folks
their merited destruction, in such a fashion that as many as possible of
the faithful should gain their well-earned reward by the “extermination”
of these folk.[[42]

Consider one more example: the Massacre of St. Bartholomew.
This wholesale massacre of Huguenots (French Calvinists) began with the attempted
assassination of a Huguenot leader, Gaspard de Coligny, in Paris (22 August
1572). On the morning of 24 August, several dozen other Huguenot leaders
were murdered, after which the violence escalated throughout Paris. Then,
to quote the historian J.H. Elliott, “Within a few hours Coligny and two
or three thousand of his fellow-Huguenots had been butchered in the capital,
and it was not long before the anti-Protestant frenzy was spreading through
France.”[43]

Historians disagree over the role played by Catherine de Medici in these events,
but she and her Catholic advisers (the Guises) certainly planned the assassination
of Coligny, and, at minimum, the Guises were behind the second stage of the
plot. After that, however, popular religious hatred got out of control and
led to mass killings that even French officials could not stop.[44]

I wish to make two points here.

First, when, in an earlier reply to Ralph, I noted the widespread religious
hatred that fueled the Wars of Religion in post-Reformation Europe, he chided
me for failing to present any “evidence” for my claim. Never mind that Ralph
does not hesitate to generalize about what the common people in ancient Rome
and Greece supposedly believed about the state, and that he does so without
providing a scintilla of evidence for this and sundry other claims.

I find it hard to believe that an accomplished historian, as Ralph certainly
is, would question the commonplace observation that post-Reformation Europe
was rife with religious prejudice and hatred, and that those intense feelings
had a lot to do with the violence of that period. But if Ralph does need evidence,
I would suggest that he begin with the widespread anti-Protestant frenzy that
precipitated most of the thousands of murders (possibly as many as 7,000, according
to some estimates) during those horrible days in August 1572, and then go from
there.

Second, and more important for our purpose, was the role of the Catholic Church
in the Massacre of St. Bartholomew. Here again historians disagree (though
Lord Acton believed that the papacy was probably complicit in the early stage).
At the very least, however, we know that “Gregory XIII was duly delighted,
and had a special medal struck to commemorate the great event.”[45] Thus, instead
of merely toting up the number of murders for which the church was directly responsible,
we should also take into account the many more murders – including some outright
massacres -- that merited its approval. Any institution that would strike a
medal to commemorate the indiscriminate slaughter of thousands of innocent
people should not be praised as a harbinger of liberalism.

We need to ask: When did the church defend freedom of conscience, freedom
of speech, freedom of the press, freedom of commerce, and other classical liberal/libertarian
values? Although some individual Catholics defended these values from time
to time, the church itself lagged behind Protestants and secularists in such
matters, often by centuries. The church, depending on the circumstances, has
been both a force for good and a force for evil, but it was never a defender
of the classical-liberal agenda.

I have not mentioned some of Ralph’s points, such as the correct understanding
of Dante – we still disagree on this, though it is a pretty minor dispute –
but I have attempted to cover the major issues. My thanks to Ralph for participating
in this discussion.

Endnotes

[40] For
this document, see Brian Tierney, The Crisis of Church and State,
1050-1300, with selected documents (Englewood Cliffs, N.J.: Prentice-Hall,
1964), 50.

A PDF version of the 1900 edition is available online at the OLL: Otto
von Gierke, Political Theories of the Middle Ages, translated with an
Introduction by Frederic William Maitland (Cambridge: Cambridge University
Press, 1900). </title/2562>.

Karl Ferdinand Werner, “Political and Social Structures of the West,” in Europe
and the Rise of Capitalism, edited by Jean Baechler, John A. Hall, and
Michael Mann (Oxford: B. Blackwell, 1988), pp. 169-184.

[Augustine], Philip Schaff, A Select Library of the Nicene and Post-Nicene
Fathers of the Christian Church. Vol. II St. Augustin’s City of God
and Christian Doctrine, ed. Philip Schaff, LL.D. (Buffalo: The Christian
Literature Co., 1887). THE CITY OF GOD. </title/2053/152751>.

Augustine, Concerning the City of God Against the Pagans, trans.
Henry Bettenson (London: Penguin Books, 1967).

Edmund Burke, A Vindication of Natural Society: or, a View of the Miseries
and Evils arising to Mankind from every Species of Artifical Society. In
a Letter to Lord *** by a Late Noble Writer,* ed. Frank N. Pagano (Indianapolis:
Liberty Fund, Inc., 1982). </title/850>.

Marcus Tullius Cicero, On the Commonwealth, trans. George Holland
Sabine and Stanley Barney Smith (Indianapolis and New York: Bobbs-Merrill,
n.d. [reprint of the 1929 ed. by Ohio State University Press]).

Marcus Tullius Cicero, The Political Works of Marcus Tullius Cicero: Comprising
his Treatise on the Commonwealth; and his Treatise on the Laws. Translated
from the original, with Dissertations and Notes in Two Volumes. By Francis
Barham, Esq. (London: Edmund Spettigue, 1841-42). Vol. 1. Chapter: CICERO’S
COMMONWEALTH. </title/546/83303>.]

The De Monarchia of Dante Alighieri, edited with translation and
notes by Aurelia Henry (Boston and New York: Houghton, Miflin and Company,
1904). </title/2196>.

Hugo Grotius, Prolegomena to the Law of War and Peace, trans. Francis
W. Kelsey (Indianapolis: Bobbs-Merrill, 1957),

Hugo Grotius, The Rights of War and Peace, edited and with an Introduction
by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty
Fund, 2005). Vol. 1. Chapter: THE PRELIMINARY DISCOURSE Concerning the Certainty
of Right in general; and the Design of this Work in particular.
</title/1425/138591>.

Immanuel Kant, Science of Right (1796) in The Philosophy of Law:
An Exposition of the Fundamental Principles of Jurisprudence as the Science
of Right, by Immanuel Kant, trans. W. Hastie (Edinburgh: Clark, 1887).
Introduction to the Science of Right. C. Universal Principle of Right. </title/359/55687>.

John Locke, The Works of John Locke, 12th ed., 9 vols. (C. and J.
Rivington: London, 1824). </title/1725>.

"An Essay For the Understanding of St. Paul’s Epistles, By Consulting
St. Paul Himself" (1707) </title/1556/81024>.

John Locke, The Works of John Locke in Nine Volumes, (London:
Rivington, 1824 12th ed.). Vol. 4. Chapter: OF GOVERNMENT.: BOOK I. </title/763/65196>.